When trying to justify the most appalling acts of torture, its advocates invariably invoke the ‘ticking time bomb’ scenario where we are told that in order to save a huge number of lives it is imperative to get some information quickly from someone who refuses to give it. Supreme Court justice Antonin Scalia is the latest to haul out this old chestnut about how it could be justified to save millions of lives, adding that there is nothing in the US Constitution that prohibits this, though one would think that the Eighth Amendment prohibition against inflicting “cruel and unusual” punishment would cover it.
But apart from the legalities, this argument is untenable as I argued back in 2009. Alfred McCoy professor of history at the University of Wisconsin-Madison and author of A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror dissects The Myth of the Ticking Time Bomb and says that this argument is based on a whole set of flawed and implausible assumptions and as soon as you allow for exceptions to torture, you are guaranteed to have abuses. As Michael Kinsley points out, these arguments in favor of torture have a fatal flaw.
There is yet another law-school bromide: “Hard cases make bad law.” It means that divining a general policy from statistical oddballs is a mistake. Better to have a policy that works generally and just live with a troublesome result in the oddball case. And we do this in many situations. For example, criminals go free every day because of trial rules and civil liberties designed to protect the innocent. We live with it.
Of course a million deaths is hard to shrug off as a price worth paying for the principle that we don’t torture people. But college dorm what-ifs like this one share a flaw: They posit certainty (about what you know and what will happen if you do this or that). And uncertainty is not only much more common in real life: It is the generally unspoken assumption behind civil liberties, rules of criminal procedure, and much else that conservatives find sentimental and irritating.
Sure, if we could know the present and predict the future with certainty, we could torture only people who deserve it. Not just that: We could go door-to-door killing people before they kill others. We could lock up innocent people who would otherwise be involved in fatal traffic accidents.
Once you are allowed to make use of extreme and unrealistic hypotheticals to justify some otherwise appalling action based on the utilitarian idea that destroying one or a few lives is justifiable to save many, you are on a dark road that leads to horrors. For example, what if a crazed person demands that a newborn baby must be sacrificed or otherwise he will detonate a nuclear weapon in the heart of a big city. Would we do that? Of course not. At least I hope we would not, though nowadays I am not so sure, since people seem to take crazy hypotheticals so seriously.
I have a question for those who rationalize the torturing of captives in order to stop a bomb:
Would they advocate the torture of a terrorist if the ticking bomb were at an abortion clinic or at the building of someone they disagree with politically?
Somehow, I don’t think they would. When christian terrorist James Kopp was on the run in France (he shot and murdered a doctor who performed abortions, plus other shootings), John Ashcroft bent over backwards to appease the French and took the death penalty off the table without any argument. A similar sweetheart deal was given to christian terrorist Eric Rudolph, the olympic park bomber, bomber of gay nightclubs. Kansas has the death penalty, but the prosecutor made absolutely no attempt to use it against Scott Roeder.
Compare all that with cases like Atif Rafay and Sebastian Burns who beat Rafay’s parents to death in 1994. Canada refused to turn them over for seven years until the prosecutor in Seattle gave up seeking the death penalty in 2001, after which the RCMP sent them back immediately. There are other cases where the US similarly refused to give it up, delaying trials by months or years.
http://www.seattlepi.com/local/article/Rafay-Burns-are-convicted-of-murder-1145787.php
Ideologues in the US are very selective when it comes to who and how they want to punish.
“Ticking time bomb” works, only in those hollywood movies. The problem is if you make policies based on hollywood violent movies, then you can justify anything you want, like murder, rape, and so on.
In 1914 Gavrilo Princip, murderer of the Archduke Franz Ferdinand, was tortured by the police to make him reveal where bombs were hidden. He kept silence. The examining magistrate pointed out that innocent people might be injured or killed by the bombs. Princip revealed where they were.
@3,
That’s very different from the account Christopher Clark gives in Sleepwalkers. What’s your source?
In any case, if you’re worried about those extreme circumstances, you could create a completely independent law that says that in sufficiently extreme circumstances, where lots of lives really were at stake, pretty much any action that proved to save the day can be excused. (By a judge or maybe a jury, during a trial, of course.)
Or, well, perhaps you can just argue that in such an extreme situation, a real hero could break the law, and then afterwards just take his lumps for that. Being a true hero does carry risks, after all, pretty much by definition. Why not these? If you save a million people, is spending a few years in prison really too high a price to pay? What kind of hero are you?!
@5 Yeah, as long as we’re treating 24 like a documentary let’s keep in mind that almost every season ended with Jack Bauer either on the lam or in some foreign prison as the result of all the laws he had to break to save the day.
@4:
Hubert Butler: The Sub-Prefect Should Have Held His Tongue
The reality is that “ticking bomb” scenarios don’t happen. Any terrorist with half a brain that had a WMD would use multiple detonating triggers including a remote firing system attached to a webcam. So if Jack Bauer tortured some grunt into divulging anything useful about the bomb, Bauer’d be blown up along with everyone else and (maybe) the terrorist would get a nice screenshot of Bauer’s last moments before they clicked the detonation app. Seriously.
What we need to ask is has there ever been an actual “ticking time bomb” scenario? No, not really. There were a few situations with stolen cars and kids in them but they were fairly quickly resolved through negotiation rather than torture.
The scenario we see other than the “ticking bomb” scenario is the “IS IT SAFE?!” scenario (Marathon Man) or “Where is the money?” scenario (No Country For Old Men) or “Who took the jewels?” scenario (Snatch) etc. In those scenarios, the person interrogating the victim is a bad guy not a good guy. And that, in a nutshell, is all we need to say. There actually are lots of scenarios in which horrible people torture people for horrible reasons. There aren’t a lot of scenarios where good people torture bad people for good reasons. Is that a coincidence?
And, last but not least, it’s a bullshit scenario because, in real life, hardasses like Jack Bauer aren’t cowardly chickenshits like Dick Cheney. Bauer would put the handcuffs on himself and turn himself in after torturing the bad guy, and would plead extenuating circumstances and get a presidential pardon. The point being that the justice system is designed to deal with weird edge cases: you put the person on trial and let the judge and jury figure it out. That, BTW, is why so many of us are so upset by the recent decisions not to try killer cops: it demonstrates that authority, itself, doesn’t trust its own rigged justice system and has to bypass it entirely. Which, really, is all that needs to be said about that.
Old school, back in the day, when torture was accepted as illegal, it still happened. It was very rare but not completely unknown. The accepted fact was that if, for any reason, you engaged in torture you would be aggressively prosecuted, your military career was over, you would be a pariah for polite society, and poison for anyone hoping to have a career in politics. This was accepted as the price. If it is so very important that you have to cross that line you have to be willing to sacrifice it all.
If the interrogator had any integrity he or she would make sure that everyone else was excluded and held blameless. The only way to do it and avoid the destruction of your life would be to take steps to thwart a righteous prosecution of the act. This might mean killing yourself, fleeing to nation with extradition, and/or covering up or obscuring evidence.
Think of this in terms of Christian mythology. An important question: Who is the hero of the Christ myth? Christ isn’t the hero because he sacrifices nothing, he is a demi-God destine to rise from the dead and live in heaven. In effect he is given back all he lost and is rewarded with life in heaven after restoration. The real hero is Judas.
The way the story is written is that without Judas Jesus isn’t captured, doesn’t show love for his captors, doesn’t suffer, and doesn’t die on a cross and can’t be resurrected. Judas is the pivot, He is also given a role which assures that his name will be reviled throughout time. It is the ultimate dirty job and, in the context of the story, a noble sacrifice of self and reputation that will never be understood by the public.
Torture is the same thing. You avoid it at all costs. It seldom works or is of any use. But if you really think that it the only way you had better be willing to sacrifice everything you have and risk life in prison. It is not to be undertaken lightly.
@7
Thanks.
…the ‘ticking time bomb’ scenario where we are told that in order to save a huge number of lives it is imperative to get some information quickly from someone who refuses to give it.
If you don’t have time to do anything other than torture the person for a quick answer, then you probably won’t have time to verify his statements. And if you had any ability to verify this person’s statements (or even verify that this person has the information you need), then that in itself pretty much indicates that torture was unnecessary and superfluous.