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.