The ACLU is not clear as to whether it believes that the targeted killing of an American citizen in 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.
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