When I first proposed the idea of a "torture warrant," many civil libertarians were appalled. Some thought that I actually favored torture -- which I don't. Others thought that requiring a warrant would legitimate an unlawful and illegitimate practice. My point was a simple one: although I personally oppose the use of torture on moral grounds, I know that it will be used by every democracy facing ticking bomb terrorist situations. That is simply a fact, which history clearly confirms. No democratic leader would want to be responsible for failing to prevent the deaths of hundreds or thousands of his citizens, if the only way of doing so required the use of nonlethal torture that might lead authorities to the ticking bomb terrorist. Since torture would in fact be used in such a situation, my proposal was designed to ensure that there would be accountability for its use and visibility, so that the public could judge whether its use was warranted in a particular situation.
Now the American Civil Liberties Union is making a similar point in relation to the targeted killing of an American citizen in Yemen. That citizen's name is Anwar Al-Awlaki. He is undoubtedly a combatant who has declared war against the United States and would be subject to prosecution and execution for treason if he were to be captured. But he won't be captured, because, like Osama Bin Laden, he is being protected by groups and perhaps nations that seek to do us harm. There are only two realistic alternatives: to allow him to remain free to continue to plan terrorist attacks against American citizens; or to target him as a combatant. The Obama Administration has chosen the latter course.
The ACLU has now brought a lawsuit on behalf of Al-Awlaki's father demanding that before Al-Awlaki can be targeted for military action, the government must "disclose the criteria that are used in determining whether the government will carry out the targeted killing of a US citizen." It is also demanding that the government present evidence of "concrete, specific and imminent threats to life or physical safety, and there are no means, other than legal force, that could reasonably be employed to neutralize the threats."
Think about this! What the ACLU is now seeking is, in effect, a "killing warrant." They are demanding, as a precondition to targeted killing, essentially the same mechanism that I have sought as a precondition to the imposition of nonlethal torture. Killing an American citizen is, of course, a more serious sanction than inflicting nonlethal torture on a non-American citizen. To be sure, torture is illegal under both domestic American law and international law, whereas the killing of combatants is lawful, at least under certain circumstances. The ACLU wants to be sure that these circumstances exist before Al-Awlaki is targeted for killing.
The ACLU is not clear as to whether they believe that the targeted killing of an American citizen is a non-war zone is legal. Requiring a warrant as a precondition for such targeting would help frame that important issue for litigation and ultimate resolution by the Supreme Court or some international tribunal. That is the virtue of a warrant requirement.
Although it is crystal clear that certain forms of torture are prohibited by law, it is not clear whether other extreme measures -- including psychological pressures, physical discomfort and other tactics shorts of the infliction of physical pain -- are always unlawful, even if deemed necessary to prevent ticking bomb terrorists from killing multiple victims. The Supreme Court has left that issue open in cases such as Chavez v. Martinez (2003). In the leading case on this issue, Leon v. Wainwright (1984), the 11th Circuit ruled that moderate physical torture -- twisting the suspects arm behind his back and choking him until he disclosed the whereabouts of a kidnap victim -- was not always a violation of the law.
This is what the judges said: This was not an act of law enforcement agents "trying to obtain a confession. This was instead of 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." It was "motivated by the immediate necessity to find the victim and save his life." If an appellate court would so regard the use of such "torture lite" in a case involving one kidnap victim, it is certainly possible that courts would approve of comparable measures in a situation in which hundreds of lives might hang in the balance.
The virtue of a "torture warrant," like that of a "killing warrant," is that it requires articulation of standards, visibility of actions and ultimate approval by democratic institutions. The ACLU seems to understand this when it comes to "killing warrants." It should understand that when it comes to the inevitable use of torture in ticking bomb situations, there is also a virtue in visibility and accountability.