Not-Quite-Torture and the Not-Quite-Ticking Bomb

Rich Lowry of the National Review recently defended waterboardking KSM as something short of torture and sort of a ticking bomb even if it was not the real thing. "Real life doesn't produce the kind of a-nuke-is-about-to-go-off scenarios featured on the television drama "24." The closest we are likely to get is the capture of high-level al-Qaida operatives like Khalid Sheikh Mohammed with knowledge of ongoing plots." Lowry acknowledges, then that the ticking bomb is a fantasy, but defends not-quite-torture of high-level Al-Qaeda operatives on the grounds that there might be a terrorist plot in the works that could be sort of a ticking bomb. But in acknowledging that a true ticking bomb is a fantasy and trying to stretch the scenario to include potential ticking bombs, he makes an excellent case why there should not be a ticking bomb exception to anti-torture laws.

The "ticking bomb" scenario assumes (1) an immediate, known danger that we lack one critical piece of information to stop, (2) a suspect in custody known to have that information, (3) no possibility of finding the critical information to stop the attack other than torture. As Lowry acknowledges, this situation is unlikely to occur in the real world. In the case of a captured Al-Qaeda leader we have (1) probable terrorist plots, at unknown stages of development, (2) a suspect in custody with knowledge about some (though not necessarily all) of those plots, and (3) captured documents, laptops, phone numbers, etc., and all the other resources that would be available if the terrorist had not been captured. It is true that there might be an immediate, ticking bomb danger that we do not know about. Or there may only be plots in early stages that remain months or even years from fruition. Or, the captured terrorist's co-conspirators may decide that any ongoing plots are compromised and call them off. We just don't know

And that is the real danger to making a "ticking bomb" exception to anti-torture laws. It is nearly impossible ever to know that any situation is a true "ticking bomb." But it is impossible ever to be sure that any situation is NOT a ticking bomb.