I haven’t done a proper take-down in a while, so when Peter Worthington wrote this disturbing little piece justifying torture, I couldn’t resist. Here’s the most pertinent quote:
“The great human rights lawyer, Alan Dershowitz, startled his fans after 9/11 when he endorsed “non-lethal torture” (like extracting fingernails), in certain extreme case where vital information might save thousands. Dershowitz advocates “torture warrants” approved by a judge before being used.
What seems beyond debate, is what’s called the “Ticking Bomb Scenario” (TBS) as the only acceptable justification for torture.
An American appeal court judge, Richard Posner (the one who ruled against Conrad Black’s appeal), wrote in The New Republic that “if torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square, torture should be used — and will be used — to obtain information.”
It’s hard to dispute this theme. Where it gets complicated, is if the person who has this essential information resists torture, and is prepared to die rather than talk.”
If you’ve spent any time at all considering the debate around torture, or even just watched “24″, then you’ve probably heard of the ticking time bomb scenario. It’s probably the single most commonly used ethical argument ever to be lifted from a prime-time action TV show. It’s employed in virtually the same form in dozens of carbon-copy right-wing editorials by writers like Worthington, and it’s seen to be a kind of trump card. Surely a person’s moral scruples about how to treat a guilty prisoner shouldn’t require that they allow millions of innocents to die in a terrorist attack.
A common reply to the ticking time bomb argument is that it is grounded more in action movies than in real life: It’s pretty unlikely that you will ever be in possession of a stubborn terrorist captive just hours before his plan to commit mass-murder ever comes to fruition. This is a good practical reply, but it doesn’t quite answer Worthington’s insistence that in such a situation, you would actually have a moral obligation to commit torture. The more fundamental problem with this argument lies not in the likelihood of the scenario it outlines, but in the potential torturer’s awareness that that scenario is actually the case. Let’s consider all the facts that have to be established for a judge to have reasonable grounds in signing one of Worthington’s torture warrants:
1. You have to know that an attack is imminent. Any marginally competent terrorist will not make this knowledge readily available to you.
2. You have to know the potential impact of the attack. Both with and without your preventative action. Quick! How many people can be evacuated from Times Square in an hour? How much damage will the bomb do beyond that distance? Do you even know how big the bomb is, or whether it is in a populated area?
3. You have to know that your captive is actually involved in the attack. Our reasonably reliable justice system already exists to do his, and it takes months. Kind of takes away from the urgency of the whole thing. Your captive is going to confess, knowing that, as soon as he does, you will have justification to torture him.
4. You have to know that the captive has the information necessary to avert the attack. Once again, they are unlikely to let you know whether they actually know the location of the bomb. If they don’t, and you torture them, then torture will be a dangerous waste of time, particularly if they concoct an answer just to make the torture stop.
5. You have to know that the captive will crack under torture. Your best efforts with waterboards and needlenose pliers could be little more than a waste of time that would be better spent looking for the bomb by other means. Even if the captive cracks, they might simply lie to you to buy time for themselves and their plan by sending you on a wild goose chase.
The problem with the ticking time bomb argument is that it requires nearly god-like knowledge of the situation in order to establish whether or not the ticking time bomb scenario actually exists. If the torturer is wrong on any of these five points, then the torture could be useless or worse. In any practical situation, it is impossible tfor anybody to determine whether or not they actually are in a ticking time-bomb situation. Our hypothetical real-life Jack Bauer, or the judge that oversees his actions, will be forced to make an educated guess as to the necessity of torture. The problem with this approach is that people, judicial officials included, have a tendency to over-estimate the importance of their circumstances. After decades of legalized torture, it might one day be used to avert a catastrophe, but not before a series of over-zealous cops used it in increasingly mundane circumstances until suddenly poverty activists are being water-boarded in a desperate and dramatic attempt to rescue several Starbucks windows from certain smashing.*
The choice of whether we allow torture to disarm a ticking time bomb is not a question of whether we allow the collateral damage in Time’s Square as a cost of upholding our moral principles, but instead a question of whether we are willing to suffer the unnecessary use of torture by overzealous police officers in exchange for the possibility of averting one unlikely potential terrorist attack. Personally, I’d rather take my chances on the terrorist attack than be complicit in unnecessary torture.
PS. If I haven’t convinced you yet, then this comic should do the job (from Tom the Dancing Bug):
*This is a slippery slope argument, but such arguments are not necessarily fallacious if a plausible mechanism is given for the slipping. The mechanism in this case is the inability to ascertain the potential benefit of torture, combined with the rapid establishment of law-enforcement precedent (think kettling), and the tendency to over-dramatize one’s circumstances in the heat of the moment. I ask: Would you trust Bill Blair with the authority to ask for torture warrants?
Liz
June 3, 2011
The issue for me is less the ‘slippery slope’ aspects to making torture legal (even in some circumstances), and more the immediate effects of become a society which tortures.
As you know, my all-time favourite risk-benefit analysis comes from evil capitalist J.P. Morgan, who issued the following statement after anarchist bombers in New York blew up his bank: “If they wish to return tomorrow, they will find me in my office.” Anarchist bombers were the evil terrorists of the 1920s – in relative terms, they caused about as much damage as 9/11 did. Why did J.P. Morgan return to work the next day rather than, say, go somewhere he was unlikely to be blown up? Because he recognized that he could not be certain that he would be blown to bits if he went to work, but he COULD be certain that he was allowing the threat of violence to move him from what he saw as his democratic personal right to conduct business if he did.
We can never be certain that torturing someone will allow us to save lives or prevent catastrophe. What we can be certain of is that torturing someone will turn us into torturers. Even if we only ever torture someone in the context of a duly signed and sealed ‘torture warrant,’ that document in itself loses its meaning, because a society in which law enforcement is bounded by reason and impartial judgement – a warrant-issuing society – is, to my mind, incompatible with a torturing society. It’s not a slippery slope. It’s a step off a cliff.