Monday, September 18, 2006

Torture and Ticking Bombs

Having condemned George Bush's advocacy of not-quite-torture, I suppose it is only right that I address that favorite challenge to opponents of torture, the ticking bomb. Would I justify torture in "ticking bomb" situations? This is a complex question and should be addressed on several levels.

Toture is immoral.

While I subscribe to the position that torture is immoral, it become more difficult in the ticking bomb situation. What if there is choice between torturing a guilty person or allowing him to kill numerous innocents? Not actually being in that situation, I am not sure that I can answer it. Before September 11, if someone had asked if the government would be justified in shooting down a commercial airliner and killing all the innocent people on board to prevent it from being used as a missile to strike a building and kill many more people on the ground, I have no idea what I would have answered. But the September 11 attack has made the answer clear; the government would be justified in shooting down that commercial airplane (although we are glad it didn't have to). Similarly, if terrorists had planted a bomb that could be revealed only by torture, I have great difficulty believing that I would morally condemn torture in such a case.

Torture is unreliable.

This is the secondary, fallback argument. I have always regarded it as something of a copout, a retreat from firm moral absolutism against torture. It is also not a very good argument in ticking bomb cases. When one seeks vague, general information that is difficult to verify (like the links between al-Qaeda and Saddam Hussein), torture is unreliable and likely just to give what the torturer wants to hear. In ticking bomb cases, where the information sought is narrow, specific, and easily verified, torture is effective.

True ticking bomb cases are extremetly rare.

This is a tertiary argument, and may seem even more of a copout. After all, it would be easy to pull a similar copout to the question of shooting down commercial airplanes. How could anyone possibly know the airplane was going to hit a building? Well, now we know the answer. It seems extremely unlikely that we would know that the bomb had been planted, that it was going to go off soon, and that we had the terrorist who had planted it, but did not know where it was. But it is possible.

But I believe this is really the crucial argument. Perhaps torture may be moral in ticking bomb situations, but the rarity of such cases is why it should not be legal. No law can be so perfect as to foresee all possible future circumstances. Laws are best written only for what seems substantially likely to happen. If one leaves a loophole in a law against torture, the loophole is likely to grow. Make an exception, and the exception can become the rule.

People who have planted ticking bombs in the United States are very rare indeed. In Iraq, on the other hand, there are EID's everywhere. Learning the location of EID's can be a matter of life and death for soldiers on foot patrol. And no one really knows if the latest detainee has information about them or not. It won't take long in a war zone before almost everything is a ticking bomb situation. And when we capture Al-Qaeda members, well, they might have ticking bomb information. Why not play safe? Authorize torture in the presumably very narrow ticking bomb situation, and that exception may turn out to be less narrow than expected.

But what about real ticking bombs? McCain, as I understand it, said that anyone who tortures in such a case can plead extenuating circumstances. His opponents responded that such an attitude encourages contempt for the rule of law and it is better to legalize torture so it can be regulated than leave it illegal and unregulated. This is a sound argument for many things we may consider immoral -- drugs, prostitution, data mining, etc. But all of these are things that are common enough to be inescapable. Torture and ticking bomb are not.

I believe that Arne Langsetmo has said it best:

Extreme hypotheticals, of course, make bad law. But even so, here's a good rejoinder to such absurd hypotheticals: If you're convinced that you're doing "the greater good" by torturing the individual and getting the information to save those thousands of lives, go for it. Just don't expect to get off scott-free. Hell, if it's for "the greater good" for the suspect person to be illegally tortured to achieve this great savings of life, then it's also for the greater good for you to lay down your freedom as well, in order to save the masses. Do what you have to, and then take your lumps. You'll have the solace, as you sit and rot in prison for torture, of knowing that you saved all those people ... and you did it without corrupting the rule of law. . . . [I]f you think you can justify an illegal act to yourself as for the greater good, go do it. Then stand up and pay the price; it was you that made the determination, so stand by your decision.

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