(For previous posts on torture, see here.)

Let me continue the look at the final excuse on the list put out by torture apologists, that if our own loved ones could only be saved by torture, wouldn’t we approve of it?

Those seeking to justify torture using such extreme hypothetical situations usually describe two scenarios, of which the question above is the second form, which I will get to after dealing with the first form.

The first form of the hypothetical asks if I would be willing to risk the deaths of many people, including my own, if they might be saved by using torture on others. The answer is yes. Although some might find this attitude hard to understand, a little thought will show why it is eminently defensible. Michael Kinsley explains why using these types of ‘ticking time bomb’ scenarios to create and justify torture policies is a bad idea because of the problem of uncertainty.

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.

In the cover story of the October 2006 issue of The Progressive magazine, Alfred W. 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. He points out that in the real world, the probability that a terrorist might be captured after concealing a ticking nuclear bomb in Times Square and that his captors would somehow recognize his significance is phenomenally slender.

The scenario assumes a highly improbable array of variables that runs something like this:

• First, FBI or CIA agents apprehend a terrorist at the precise moment between timer’s first tick and bomb’s burst.
• Second, the interrogators somehow have sufficiently detailed foreknowledge of the plot to know they must interrogate this very person and do it right now.
• Third, these same officers, for some unexplained reason, are missing just a few critical details that only this captive can divulge.
• Fourth, the biggest leap of all, these officers with just one shot to get the information that only this captive can divulge are best advised to try torture, as if beating him is the way to assure his wholehearted cooperation.

But this combination of factors is highly unlikely to occur. It is only after an event has occurred that people look back and see clearly the chain of events that led up to it and are able to unerringly “connect the dots”, to use a currently popular cliché. He points out that Zacarias Moussaoui was in captivity for weeks before 9/11 being desultorily questioned without any useful information being obtained, because the “FBI did not have precise foreknowledge of Al Qaida’s plot or his precise role.”

McCoy quotes Roberta Wohlstetter who wrote in her study of that other great U.S. intelligence failure, Pearl Harbor that, after the event, “a signal is always crystal clear; we can now see what disaster it was signaling since the disaster has occurred. But before the event, it is obscure and pregnant with conflicting meanings.” Scientists know this. They often grapple for years with puzzling data for which there seem to be no pattern and then when someone postulates a new theory, everything suddenly falls into place and it all makes sense and the pattern is clear.

People like Charles Krauthammer try to have it both ways. They want to project an image of themselves as urbane products of the Enlightenment with refined sensibilities, while at the same time justifying their most barbaric and revengeful impulses, condoning actions that make the Inquisition pale in comparison. Writing recently, he starts by trying to establish his adherence to Enlightenment principles, saying that “Torture is an impermissible evil.” So far, so good. But then he immediately goes over to the dark side by adding:

Except under two circumstances. The first is the ticking time bomb. An innocent’s life is at stake. The bad guy you have captured possesses information that could save this life. He refuses to divulge. In such a case, the choice is easy.
…
The second exception to the no-torture rule is the extraction of information from a high-value enemy in possession of high-value information likely to save lives. This case lacks the black-and-white clarity of the ticking time bomb scenario. We know less about the length of the fuse or the nature of the next attack. But we do know the danger is great. We know we must act but have no idea where or how — and we can’t know that until we have information. Catch-22.

Under those circumstances, you do what you have to do. And that includes waterboarding.

So for Krauthammer torture is impermissible except when it is permissible. Someone should quote him the immortal words of Inigo Montoya in The Princess Bride: “You keep using that word. I do not think it means what you think it means.”

The ‘ticking time bomb’ scenario as a justification for torture is seductive in its appeal. Sam Harris falls for it and even ethicist Peter Singer supports torture because, as a utilitarian, he supports the minimization of suffering, and using that calculus, if you can save many by torturing a few, then he says we should go for it: “Torturing a human being is almost always wrong, but it is not absolutely wrong. If torture were the only way in which we could discover the location of a nuclear bomb hidden in a New York City basement and timed to go off within the hour, then torture would be justifiable.” (From his book Animal Liberation (1975), excerpted in Writings on an Ethical Life by Peter Singer (2000), p. 53.)

But as McCoy argues, the ‘ticking time bomb’ scenario 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. McCoy argues that allowing for torture even in very limited cases almost guarantees that the practice will expand and grow.

Once we agree to torture the one terrorist with his hypothetical ticking bomb, then we admit a possibility, even an imperative, for torturing hundreds who might have ticking bombs or thousands who just might have some knowledge about those bombs. “You can’t know whether a person knows where the bomb is,” explains Georgetown University Law Professor David Cole, “or even if they’re telling the truth. Because of this, you end up going down a slippery slope and sanctioning torture in general.”

While there is a (admittedly small) chance that we can all agree that torture should be unconditionally outlawed, once we allow exceptions there is almost no chance that we will all agree on what those exceptions should be. This is because the act of torture is so extreme, and the varieties of ways in which it can be practiced so numerous, that the people at the receiving end will not accept restrictions on how they can respond. It is only a matter of time before we reach the stage where we place the decapitated heads of so-called “enemy combatants” on spikes in public spaces as a warning, as was the practice of kings and queens in England against their perceived enemies.

But apart from the high degree of implausibility of the ticking bomb scenario, we must realize that we can never live in a risk-free society. We have no choice in the fact that we are all going to die at some point. The question is whether there is a level of barbarity to which we will not sink in order to save our skins.

To be continued…

POST SCRIPT: Rooks using tools

A remarkable video showing rooks carefully selecting the most appropriate tool to obtain food.