Terrorism and Human Rights (8): Torture and the Ticking Bomb

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 the information. … no one who doubts that this is the case should be in a position of responsibility. Richard Posner

During numerous public appearances since September 11, 2001, I have asked audiences for a show of hands as to how many would support the use of nonlethal torture in a ticking-bomb case. Virtually every hand is raised. Alan Dershowitz

People have come up with many arguments to justify torture, but the most famous one is the “ticking bomb argument“: suppose we capture a terrorist, and we know that he or she knows where the ticking bomb is hidden that will soon kill thousands or millions, or where and how another type of terrorist attack will take place. However, this person will only reveal the information under torture. Are we not allowed to use torture in order to get the information and save numerous lives? Are we not morally forced to torture given the enormous benefits for large numbers of people compared to the limited costs for the tortured individual?

This argument is flawed, because it is based on a number of untenable assumptions:

Assumption 1: A real-life case

This seems to be a thought experiment rather than a real-life dilemma. The example of the captured terrorist with information about a ticking bomb is unlikely to happen in real life. Law enforcement officers or military and intelligence personnel usually do not arrest terrorists or accomplices before the terrorist act takes place (usually they make the arrests afterwards, and sometimes they don’t even manage to do that). We all know that most real cases of torture have absolutely nothing to do with the example given in the ticking bomb argument.

Assumption 2: Knowledge and knowledge about knowledge

But let’s assume that it does happen, and that one is, in exceptional cases, able to arrest someone before the terrorist act takes place. For the ticking bomb argument to be valid, we have to be positively sure that the terrorist or accomplice has the information that is required for us to stop the attack or explosion to take place. How can we be sure about this? And if we’re not sure, can we start torturing this person in order to know that he or she has the information?

The latter would mean that we don’t just torture in order to get life saving information. We torture in order to know whether this person has or doesn’t have such information. It’s obvious that in this case we will torture many people who don’t have information. And if they don’t have information, we may be torturing innocent people, or at least people who, although accomplices, are not justifiable objects of torture since the argument is that torture is justified because it is necessary to obtain life saving information. These people don’t have such information, and hence their torture isn’t justified. Some other justification is required in order to be able to use torture on people who do not obviously and undoubtedly possess life saving information. This seems to fall outside the ticking bomb argument, an argument which is therefore incomplete.

And, by the way, torturing people in order to find out if they have information is the worst kind of torture: since many of them don’t know anything, they will be subject to the longest and deepest forms of torture.

Assumption 3: It works

Again, let’s assume that all of the above is irrelevant, that we do hold someone who has vital information, that we know for certain that he or she has this information, and that we didn’t have to use torture to be certain. These are already a lot of assumptions, but a further assumption of the ticking bomb argument is that torture is a efficient tool to extract reliable information. We all know that it isn’t (see here). People who are tortured say anything in order to make it stop.

And what if torturing the terrorist doesn’t make him or her speak? In that case, the ticking bomb argument also justifies torturing the terrorist’s family and children (a kind of indirect torture aimed at “convincing” the terrorist to give information). If torturing him or her is insufficient, then further options are equally justifiable. The cost-benefit analysis on which the ticking bomb argument is based justifies torturing the family. The guilt or innocence of the family, or of anybody else who is tortured, is irrelevant. What counts is that the cost of torture doesn’t outweigh the good it does, i.e. the number of lives it saves.

But this begs the question: how many lives have to be saved if the cost of torture is to be acceptable? A million? 10.000? 10? … Difficult to tell in borderline cases, but then the answer would be: at least it’s clear when we go into the really big numbers. Torturing even a few dozens of people in order to safe a million is a “no-brainer” (in the words of former Vice-President Cheney). The reality is however, that most terrorist attacks do not kill millions or even thousands.

Assumption 4: No alternative

Again, let’s accept all the above assumptions, for the sake of argument. One of the supposedly strong points of the ticking bomb argument is the lack of an alternative to torture. There seems to be nothing else one can do. But there is something wrong with the timing in the argument:

On the one hand, to represent some type of ticking bomb scenario, the timing of attack must be far enough in the future that there is a realistic chance of doing something to stop it. On the other hand, if it is so far off in the future that the loss of life can be prevented in some other way (evacuation, for instance) then the supposed “need” for torture simply disappears. (source)

Assumption 5: Exceptional

Given the urgency in the example of the ticking bomb, and given the fact that terrorists are often trained to withstand torture, a free society would have to

maintain a professional class of torturers, and to equip them with continuously-updated torture techniques and equipment. Grave dangers to democracy and to individual freedoms would be posed by an institutionalized professional “torture squad”. (source)

Torture corrupts people, and it is not farfetched to assume that a “torture squad” would infect an entire society. The squad members themselves will not remain well-intentioned, and the mere existence of such a squad corrupts morality in a society. This shows that torture in the ticking bomb argument starts as an exception but tends toward institutionalization.

Assumption 6: The Greater Good

It’s not obvious that the rights of one person can be sacrificed for the benefit and rights of others. Once you start this kind of trade off, you will quickly find yourself in a world in which it is allowed to “break some eggs if you want to make an omelet”. Terrorists also assume that they fight for a greater good and that they are allowed to sacrifice some in order to save others. Torture then puts the tortures on the same level as the terrorist.

What motivates the ticking bomb argument?

It’s not difficult to see some of the underlying motives of those using the argument. It seems to me that the dramatic force and moral clarity and simplicity of the example, even if it is very unrealistic and far removed from the much murkier and complex cases that confront us in reality, can be used by those who are in favor of torture in order to open the door and make some cracks in what is still, for many, a moral absolute (similar to the prohibition of slavery and genocide).

The United Nations Convention Against Torture, which took on the force of federal law in the U.S. when it was ratified by the Senate in 1994, specifies that

No exceptional circumstances, whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

The ticking bomb argument is intended to show that an absolute ban on torture is unwise and ultimately detrimental to the survival of a free society. Opponents of torture are labeled moral absolutists, unwilling to confront the darker sides of reality and isolated from the tough problems that people in the field have to deal with. By making it impossible to “deal” with these tough problems, absolutists endanger the nation.

Once the absolute is broken, and some forms of torture are allowed in some circumstances – and even necessary if we want to protect freedom – then those who fight for democracy and for the right of people to express their opposition to torture, are able to do their jobs and make their hands dirty.

The torturer becomes the patriot; those defending the moral values of a nation are ivory tower intellectuals unaware of the realities of life and de facto allies of the terrorists. It’s not the example of the ticking bomb that is simplistic; it’s the moral absolutism that obscures that complex choices of real-life anti-terrorism.

The obvious objection to breaking the absolute is of course the slippery slope. I mentioned above that the ticking bomb argument would allow torturing many more people than just the captured terrorist holding vital information.

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4 thoughts on “Terrorism and Human Rights (8): Torture and the Ticking Bomb

  1. Posner and Dershowitz are American Jewish, and their interest is Mid-East : US political “arrangements,” where Middle East people may be legally tortured under US govt. policy. So much for what Hitler has taught in history lessons

  2. Let’s see how much people support torture when they are the ones in the hot seat, subject to their own policies. I bet bribery, manipulation, and hypocrisy come out of the closet in a hurry. Most of the people in power are all for ideas that would horrify most people, because they themselves never have to live through such nightmares. There was a time when officers of the law had to endure being maced, before being allowed to use it themselves, so that they KNEW what they were doing to others for example. I bet if our law makers sat and endured a pair of tongs pulling off a toenail (one of MANY examples of torture), they’d change their minds…

  3. I think its totally unacceptable but if my mum friend brother was in danger I would definitly make torture justifiable mainly because that as a terrorist under very extreme circunstances are responsible and therefore the government should use any means to save innocent people. Torture is already occuring in many places around the world and the fact that people have condenmed its justiability has put torture under the radar of accountability so wouldnt it be better for torture to be regulated and adress this issue? All I know is that if you were placed in the position where your son has been kidnapped and the police have captured the suspect and he continues to give you misleading information of his whereabouts im sure youd want the police to extract the info by all means necessary just hoping that by the time you do obtian that info it isnt late.

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