Monday, December 28, 2009
In thinking more about TigerHawk's post below regarding Janet Napolitano's remarks ("the system worked"; see Ace's riff on that), and the comments to the post, it does present an potentially interesting moral question for each of us.
I think that it is highly unlikely that I will be in a situation similar to Jasper Schuringa on Flight 253, and that same extremely low probability applies to the readers of this blog, I hope. But let's just say for the sake of argument that we've helped to thwart a terrorist attack on board an airplane. Part of it was luck, and part of it was quick action. Now what?
Are we really part of the "system," as Secretary Napolitano implies? Well, certainly not in any official capacity. I don't recall taking an oath or receiving a piece of paper empowering me to act with the color of law. We are therefore not bound by the same rules of engagement that would limit the techniques available to actual members of the system (namely, federal agents of some sort) under the Obama administration. Would we have the fortitude to aggressively interrogate the terrorist prisoner in the remaining 60-90 minutes of the flight, in an effort to determine whether other flights were at risk in a coordinated attack? Could we really channel our inner Jack Bauer? In addition to the moral question, there is some risk of criminal charges that would follow from such an interrogation, and conceivably even a civil suit from the prisoner -- though in either case, you would have a huge defense fund raised for you, a good lawyer getting the right venue for you, and very little chance of an adverse verdict in a jury trial, in my estimation as a layman.
Now, I am not suggesting or advocating something along the lines of the actions of the passengers in the 1985 made-for-TV movie Hostage Flight, which ends with the terrorists being hanged on the flight (video of the last minute or so here), because the prisoner probably has more information to give than can be received in an hour or so. What I am suggesting is that ordinary citizen-passengers could conceivably use very coercive interrogation techniques which are unavailable to the authorities, and do so in what would apparently be a ticking time bomb scenario (regarding the possibility of coordinated attacks). Think Sipowicz on steroids; a somewhat more serious approach than asking "who does Number Two work for?".
So what would you do? Use the poll below or the comments section.
Anyone with a knowledge of our anti-discrimination laws would probably pause long enough for the delay to be deadly.
After 9/11 the US government, especially the Secretary for Transportation, emphasized the anti-discrimination provisions as they applied to air travel. Several airlines were levied large fines for "discrimination" against Muslims.
This set the stage for the Flying Imams case (http://patterico.com/2009/11/04/flying-imas-update/) The Minnesota case of the “flying imams” that involved a November 2006 USAirways flight has been settled. Powerline’s Scott W. Johnson tells us the facts:
“The six imams were detained as they were returning home from a convention of the North American Imams Federation in a suburb of Minneapolis. Three of the six had prayed before the passengers at the airport as they awaited the departure of the flight. A passenger had passed a note to the pilot pointing out suspicious activity:
6 suspicious Arabic men on plane, spaced out in their seats. All were together saying “ . . . Allah . . . Allah” cursing U.S. involvement w/Saddam before flight–1 in front exit row, another in first row 1st class, another in 8D, another in 22D, two in 25 E&F.
Onboard USAirways personnel called MAC dispatch to advise that the six passengers would be removed and ask for officers to come to the gate. The first MAC officer on the scene was advised by a USAirways manager of the passenger’s note. He was also advised that some of the six passengers had checked no luggage, some had asked for seatbelt extensions, some had one-way tickets, and all six were of Middle Eastern descent. A USAirways flight attendant told one of the MAC officers that, in her opinion, the two seatbelt extensions requested by the imams were unnecessary given their sizes.
A MAC officer and a federal air marshal boarded the plane and interviewed the passenger who had written the note. In her decision the judge stated that after leaving the plane, the officers conferred and decided that the request for seatbelt extensions, the praying and utterances prior to boarding the plane, and the seating configuration amounted to suspicious behavior. They alerted the FBI and were requested to detain the imams for questioning.”
And the issue:
“The principal issue addressed by Montgomery’s decision is whether the law enforcement defendants were entitled to qualified immunity for their actions. This immunity protects government officials from monetary claims under circumstances where a reasonable officer would not know his conduct was illegal. Montgomery held that the flying imams were the subject of an unlawful arrest and that no reasonable law enforcement officer could have believed otherwise.”
And the decision:
“Quoting case law, [Judge] Montgomery stated that the relevant question in determining qualified immunity is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. She held that no reasonably competent law enforcement officer could have believed that his conduct was legal in the imams’ case.”
The best course of action probably is to kill a hijacker/terrorist, mainly in a "don't leave the enemy alive behind you" sense, though if they're sufficiently injured it doesn't really matter.
"Could we really channel our inner Jack Bauer?"
It's happened in real life, unless you're talking strictly about interrogation and not simply killing a hijacker:
"ordinary citizen-passengers could conceivably use very coercive interrogation techniques which are unavailable to the authorities"
It's far more likely the Christmas Day bomber was a useful idiot than someone with valuable information. The safest course of action would be to kill him.
Be careful. The president just decided to hand over Americans to Interpol for trial in foreign countries. Like Yemen. Anything you say, as well as anything we think you would have said if given the chance, can and will be used against you.
Take all measures to wring out as much information as possible but then lard him with bacon and bury him alive in pig manure.
And make sure that the whole world knows that will be the new method of dealing with these madmen.
The most probable outcome of the event in question is for the would-be idiot to wind up firmly trussed hand and foot with every luggage strap on the plane and strapped into a seat, and gagged if noisy.
The wanabe Bauers and the CC's are quick to spout their best "well, I would...", but reality has a chilling effect on our actual actions. I think even CC would be more than willing to donate a luggage strap to the cause, if in that situation, no matter the skin tone or nationality of the perp.
We seldom make our best decisions while free-forming our heroism. The military adage that one does not rise to the occasion, but reverts to the level of one's training, likely applies. If we are allowed to pretend "what is the best response" in the abstract, I would hope I would ask generally "Does anyone here have experience in interrogation?" There just might be a police officer or some such available. The important thing would be to get the information.
As far as the ticking time bomb/coordinated attack scenario is concerned, that didn't actually turn out to be the case with Christmas bomber, nor with Richard Reid, so I don't think it does much to help the pro-torture argument.
Meanwhile, it might be helpful to remember that an American soldier right now is being held prisoner by the Taliban. Even if you think there's a 0.0000% chance that his treatment and the treatment of future prisoners will be affected by how we treat people we've captured, you might think his psychological strength will be affected by knowing that we're a cut above people who torture.
Finally, private citizens have no obligations to Mirandize and can ask questions freely. Torturing someone is different.
Congrats to Brian for noticing the deliberately erroneous poll choice regarding the prisoner being. Mirandized, which of course could only happen if a law enforcement official happened to be aboard. I would suggest to Brian that, given the nature of the 9/11 attacks, it would not be unreasonable for passengers to believe that other aircraft might be at risk, and it is therefore worthwhile to question the prisoner ASAP (and AVI is right that expertise should be sought out). That is, the passengers don't know one way or the other whether multiple flights might be involved, not having the benefit of hindsight when one is in medias res, so why not try to find out? If you can get the prisoner to provide information without tuning him up, great. I think my point is that a private citizen has the more physical option, with relatively little chance of it coming back to bite him in a meaningful way.
I think that personally I would be willing to inflict some degree of physical discomfort in that special situation -- following the capture of somebody (a non-uniformed terrorist) who was trying to kill several hundred innocent civilians. That does in fact put me a cut above the terrorists, who will torture pretty much anybody they randomly capture and feel like torturing, whether or not that person has done anything remotely criminal.
Agreed that there may well be charges and an indictment, but a well-selected jury and venue will produce at a minimum one not guilty vote and a mistrial. But there would have to be a jury trial. Exigent circumstances, heat of the moment, strong belief that other planes were at risk, took no pleasure in it, etc. I can't see a conviction, no matter how hard the judge steers the case. Juries will nullify if they don't like what the "by the letter of the law" outcome will produce. What person wants to be known as a juror who convicted somebody who was part of a team of heroes that took down a terrorist attack, regardless of what happened in the immediate aftermath?
I think torture could result in accurate information, but only when there's time to corroborate the tortured person's claims and inflict more severe torture if it turns out he or she lied. Game theory has shown that repeat player games are the ones that establish a level of trust.
That's the main problem with many ticking time bomb scenarios, including the hypothetical one that didn't actually happen last Xmas - the tortured person's best strategy, if he's got useful info for the other side, is just to lie during the few minutes that he needs to lie. Soon he's in the hands of the police.