Thursday, June 19, 2008


Sandy Levinson

I seem to be one of the few Americans who almost never watched Meet the Press and tended to fold Tim Russert into the general company of media bloviators. I was, of course, touched by his death, not least because he was nine years younger than I am. I was also moved by many of the heartfelt tributes to his niceness as a human being. The one and only time our paths crossed was when he attended a fund-raiser at a Jamaca Plain, Massachusetts restaurant/bar for an aged nun. (The funds were being raised by selling political posters and memorabilia, and I collect depictions of the American flag, which explains my own attendance!) He did indeed seem to be a regular guy and far more knowledgeable about American politics than many of his colleagues.

David Remnick has a very fine comment on Russert in this week's New Yorker. He notes, among other things, Russert's thorough preparation for his interviews and his desire to make news by trapping his subjects in politically embarrassing conversations where they were contradicting what they had previously said. Remnick writes, "Google was his tool and Gotcha his game."

It should be obvious that one of the principal "Gotcha" exercises in the upcoming campaign, particularly in one of the presidential debates or "town-meetings," will be to pose the "ticking-bomb" hypothetical and to ask McCain and Obama (but, obviously, particularly Obama) what he would do with regard to torture. David Luban has written a remarkable post on the intellectual bankruptcy of the hypothetical, but that, of course, doesn't lessen the likelihood one whit that one of the bloviators--perhaps George Stephanopalous seeking to assure his audience that he's not a Democratic hack--will ask the question. (Some of us can remember the "what if your wife were raped" question that Bernard Shaw directed at Michael Dukakis, the answer to which--Dukakis would not try to strangle the rapist with his bare hands and, more to the point, seek the death penalty--along with the tank ad and the Willie Horton ad, doomed his campaign.)

So the practical question is the following: How, precisely, should Obama answer the "Gotcha question" in the, say, 90 seconds he will have? If he says there have been no examples of the ticking bomb, then why won't the bloviator say, but what if there were? (One can scarcely say that it could never, under any conceivable circumstances in any possible world, occur.) Perhaps McCain will say, "There are no circumstances, period, under which I would order torture," and Obama can simply say, "I agree." But does anyone expect McCain to take that high road in response to the Gotcha question, given his refusal to support applying the limits set out in the armed forces interrogation manual to the CIA?


my answer is: "I would torture the person if I was strongly convinced that he has knowledge of the bomb, but I would expect to be criminally prosecuted". The jury would decide my punishment.

Good call. I'd be a bit stronger on both sides: "I would torture the person if I knew beyond all conceivable doubt that he possessed information that would save the lives of hundreds or thousands of Americans. And then I would turn myself in to the authorities for breaking the law."

I'd like to address a tangential matter, concerning Remnick's article to which you link. Remnick praises Russert's repeating his question, "When does life begin?," to Al Gore as an example of Russert's not backing off easily. It may have been that, but it was also an example of the mass media's mindlessness. This is because "When does life begin?" is a stupid question and is not helpful in deciding how we should view abortion, morally or legally.

It is an empirical fact that a newly conceived fetus is alive (under any reasonable definition of "life"); everyone, on either side of the abortion question, should acknowledge that. On one side, one must argue for the right to abort a fetus even though it is alive, and, on the other side, one must argue against the right to abort a fetus by asserting something beyond the obvious fact that a fetus is alive. Russert was probably bright enough to know that, so he must have been pandering to audience.

two word answer... Prosecutorial discretion.

A technical question: Both of the first two responses in effect presume that a sitting President is subject to criminal prosecution. Is that true? i take key to the Court's decision in Clinton v. Jones was that it was a civil suit, with no possibility, for example, that the President would be sentenced to jail.

So would one expect him to say "I would torture... but then immediately resign and turn myself in" or "I would torture ... but then encourage the House to impeach me"?

To say that "I would serve out my term and then expect to be subjected to criminal prosecution afterward" is something of a fudge.

is impeachment limited only to the duration in office .. ?? i read a piece the other day that suggests impeachment can also be applied after leaving office .. such form to deprive an illegal actor from colllecting s pension .. or also to bar a given person from further governmental service in any capacity ..


Prof. Levinson puts forth the hypothetical:

If he says there have been no examples of the ticking bomb, then why won't the bloviator say, but what if there were?

If I were Obama, I'd say, "And if pigs could fly, we'd all carry cast-iron umbrellas." Of course, I'm free to offer this advice, because I'm not Obama. ;-)

Of course, my response to the TTB question (now over two years old and long in the tooth) has been repeatedly linked by me whenever the subject comes up....


I'd ask the questioner who he would trust to authorize the torture of his friends if some CIA operative became convinced they had information about an impending attack.

After all, if it's thinkable that there would be a "ticking bomb scenario", then it's thinkable that some journalist might have information about it without knowing -- or believing -- they have it, and be unwilling to give that information.

I suggest "I'll answer that if you'll answer me this: if God can do anything, can he make a stone so heavy He can't lift it?" In other words, this hypothetical is about as meaningful as a logical fallacy.

Or, "I'll be ready to answer that if it ever happens, just as I'll be ready to respond if aliens from Proxima Centuri arrive with free gasoline, but I should mention that I have pretty good reason to expect neither is gonna happen."

Or, "I think you're confusing the real world with '24'. Maybe I can help you: Jack Bauer is a fictional character, '24' is a TV show, a form of entertainment, and the ticking bomb solved by torture in '24' happens all the time in Jack's fictional world but not in the real world. Does anyone have a question about the real world?"

However I also much like the suggested answers from dwh, mike, and arne.

Perhaps that shows often you can find not just an answer to a Gotcha, but several, all of them decent and reasonable.

And perhaps that in turn shows that a Gotcha is a problem for the unprepared, the not very able, liars, hypocrites, and two-faced scoundrels, and not so much for able, honest, prepared folks.

"It should be obvious that one of the principal "Gotcha" exercises in the upcoming campaign, particularly in one of the presidential debates or "town-meetings," will be to pose the "ticking-bomb" hypothetical and to ask McCain and Obama (but, obviously, particularly Obama) what he would do with regard to torture."

But as you noted above, Russert's "gotchas" revolved around researching a guest's past statements, and posing questions that catch them contradicting those statements. Has Obama made past statements approving of torture in ticking timebomb situations?

Obama has a lot of past statements that could form the basis for gotchas, an extraordinary number, really, but not, so far as I know, in the area of state sponsored torture.

There is no reason to believe that Obama has ever supported torture in any way. Unfortunately, one can't quite say the same of Sen. McCain, given his refusal to apply military standards to the CIA. And, given his fulminations aboud Boudimiene and his playing of the "fear card" re terrorism, I would be very surprised if no one asks the "gotcha" question.

Here's what I would say if I were Obama:

"As you know, X, ethicists have considered this scenario and it's a phony issue because of 1 and 2. So let me re-phrase the question to you: Suppose the ONLY way you could get the essential information was to rape and torture the suspect's 6 year old daughter. Would you do it? Would Senator McCain?

To say that "I would serve out my term and then expect to be subjected to criminal prosecution afterward" is something of a fudge.

True enough. I suppose the point of my initial response was the confession, not the subsequent action. I'd throw myself at the mercy of the Court (or Senate, or American People) and let the chips fall where they may.

Well, this would be my answer anyway:

"If I knew for sure that there really was a ticking time bomb, and if I knew for sure that the loss of thousands or tens of thousands of lives was imminent, and if I knew for sure that we had in custody the one man who could prevent this tragedy, and if I knew for sure that we had done everything that we absolutely could do short of torture to get the proper information from him, and if I knew for sure that torturing him would actually get the truth from him, then yes I would resort to torture. But that's an awful lot of ifs to hang a crime against humanity on. Because make no mistake about it, no matter what the justification torture is a crime against humanity.

"As for the Bush adminsitration, they have never come close to this threshold -- on the contrary, they have used torture in one long fishing expedition, trying to discover if maybe someone somewhere might know something about some plot of some unknown dimensions to do some damage to someone. In doing so the administration has tortured or santioned the torture of hundreds of innocent people who represented no threat to anyone anywhere."

Whatever happened to "prudence"? Oh, I forgot: It's dirty word with legal types who must absolutize everything.

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