From the Editor

By Martin Lasden
     
      Can the killing and eating of another human being ever be justified? That was the question raised by The Queen v. Dudley and Stephens, a famous British case tried in 1884. The defendants were a captain and a crewman who survived at sea in a tiny lifeboat for nearly a month by subsisting on the body of their cabin boy.
      Their situation was desperate?no one disputed that. In fact, by the time the yacht's captain slit the cabin boy's throat, the survivors had gone without food for seven days and without water for five, and the cabin boy himself was slipping in and out of consciousness. So obviously a "necessity defense" could be made here?a defense that when presented at trial drew considerable support from both the public and the press.
      Still, the Divisional Court that heard the case didn't go along. "Who is to be the judge of this sort of necessity?" asked the lord chief justice, who wrote the opinion. "By what measure is the comparative value of lives to be measured?
      "It is not suggested that in this particular case the deeds were 'devilish,' " the lord chief justice added, "but it is quite plain that such a [necessity] principle, once admitted, might be made the legal cloak for unbridled passion and atrocious crime."
      Of course, sea travel is a lot safer now than it used to be. But the world continues to be a dangerous place. And in the wake of 9/11, the logic of necessity?if not the necessity defense itself?is once again in the headlines, only this time in the United States, to justify the torture of suspected terrorists as a way to save an untold number of lives.
      Never mind that as recently as last May a group of psychologists and other specialists commissioned by the Intelligence Science Board concluded that the harsh interrogation techniques used on detainees since 9/11 are both unreliable and outmoded. Never mind, too, that U.S. military sources have said that a high percentage of the people locked up in Guantanamo and other places have little or no intelligence value. Nowadays, whenever the morality of torture is discussed, it's a good bet that someone?whether liberal or conservative?will raise the specter of a ticking?time bomb scenario in which the torture of one is pitted against the lives of thousands.
      John Yoo, the subject of this month's cover story ("Mad About Yoo," page 18), has been at the center of this debate for several years now. The Boalt Hall law professor contributed heavily to the Justice Department memo that would give the president the legal right, as commander-in-chief, to order the indefinite detention and torture of just about anyone, without judicial review. Most legal scholars would say that the logic in this document, the so-called torture memo, is highly flawed. But flawed or not, how does one argue against the use of torture and for the rule of international law when the country feels increasingly threatened by stateless terrorists? Perhaps one good way to begin is to hearken back to the wisdom of the lord chief justice who more than a hundred years ago, despite popular sentiment, refused to accept the necessity of cannibalism.
     

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