بسم الله الرحمن الرحيم
Indicated by the title of William Schulz’s well-argued article “Is the ‘Ticking Bomb’ Case Plausible?” the author presents a compelling counter-thesis to the hypothetical “ticking bomb” scenario. That scenario is typically posited by proponents of “necessary” instances of torture as an interrogation method. Specifically, Schulz, the former executive director of Amnesty International USA, argues against Alan Dershowitz’s thesis, which offers a purported check on law-enforcement-exacted torture, through the implementation of what he calls “torture warrants.” These, Dershowitz emphasizes as particularly essential to the execution of Federal Law Enforcement duties, particularly in the post-9/11 era.
In his counter-thesis, however, Schulz concludes that “Dershowitz’s hypothetical application of the torture warrant proposal to the events of September 11 shows exactly what is wrong with it.” That is, in the words of Dershowitz:
Had law enforcement officials arrested terrorists boarding one of the airplanes and learned that other planes, then airborne were headed towards unknown occupied buildings, there would have been an understandable incentive to torture…
Yet Schulz poignantly identifies that this hypothetical situation presumes an unrealistic scenario that does not coincide with the reality of law enforcement. Specifically, it presumes that law enforcement would have been able to take the suspects into custody before the commission of said terrorist acts, ascertain with a fair degree of certainty that the suspects were (1) terrorists, (2) that they had information in their possession, and then (3) apply to a judge for a torture warrant with enough time remaining to thwart said attacks. Naturally, this third aspect of Dershowitz’s argument unnecessarily complicates the matter philosophically, as there is no necessity of a torture-proponent to provide for such a safe-guard. Accordingly, this last point will be disregarded from further critique, as I proceed, though it is not by Schulz, who makes a point of decisively squashing this as implausible and contrary to the sense of urgency implicit in the hypothetical scenario Dershowitz posits.
Returning to the second point above, though Shulz does not mention this, the purported “Sleeper Cells” of the 9/11 plot, in fact did not know the details of other cells (or their individual members), acting in tandem. Thus, if one cell was compromised, no amount of torture would have thwarted the attacks of the other cells. This adds another interesting, and complicated twist to the hypothetical situation; though a twist that similarly argues against Dershowitz’s justification thesis. The unexplored avenue provides us with scenery of an ever-changing landscape of terrorist tactics; an evolving, adaptable, situational modus operandi, which tomorrow will not fit into the assumptions found neatly codified and categorized in the training manuals of yesterday.
To the end of destroying this second assumption found within Dershowitz’s hypothetical 9/11-thwarting-scenario, Schulz introduces his argument by stating:
Whether or not torture is an effective method through which to gain access to information, the argument for torture premised upon the “ticking bomb” scenario stands or falls upon the plausibility of the hypothetical situation. If the “ticking bomb” argument is based upon no more than an abstract calculation, unrelated to real life, then it loses much of its persuasive power.
Schulz notes the virtually universal hypothetical scenario of “what if” one could go back in time and kill Adolf Hitler. However, he notes that this hypothetical scenario, like that of the “ticking bomb,” is based upon premises that have no relationship to the way the world actually works; that require, echoing the Hitler example, “a superhuman clairvoyance.”
What the ticking bomb case asks us to believe is that the authorities know that a bomb has been planted somewhere, know it is about to go off, know that the suspect in their custody has the information they need to stop it, know that the suspect will yield that information accurately in a matter of minutes if subjected to torture, and know that there is no other way to obtain it. The scenario asks us to believe, in other words, that the authorities have all the information that authorizes dealing with a crisis never have.
While, in the example that Schulz gives, his citation of Henry Shue reveals a concession to the defensibility of torture in the abstract, for a “case just like this,” (emphasis original), he continues later “real life is neither abstract nor strict, and even if we limit ourselves to a cold cost-benefit analysis, the long-term consequences of violating other’s human rights are rarely clear ahead of time.”
Schulz follows with an excellent example of the actions of American General Jacob Smith and his soldiers in the mass slaughter and razing of the Philippines, followed by a continued military presence under the abusive Marcos regime until eventual overthrow in 1986. He notes the unintended consequences, that in 2002 to 2003, when the US sought to reinstitute a military presence – to seek out and combat the terrorist group Abu Sayf – many Filipinos resisted this proposal. More to the point, Schulz notes:
Proponents of ticking bomb torture try to convince us that the calculation is straightforward: torture one terrorist; save 100 people. But that assumes that there are no further detrimental consequences once the victims of the bombing are saved – no retaliatory strikes, for example, by the torture victim’s comrades to pay back the inhumanity done their brother. If that happens, the math may quickly change: 100 people saved today; 1,000 killed tomorrow [. . .]
Schulz follows with a further essential question, that being, “Does terrorism even work?” He cites Eric Haney, former interrogator for the US Army, Art Hulnick, a former CIA officer, who interviewed North Korean prisoners after the Korean War, as well as Christopher Whitcomb, a former FBI interrogation instructor, all who reject the effectiveness of torture as a means of gaining accurate information, or (in those cases where some accurate information is yielded), accurate information that is isolated from inaccurate information which the individual believes their interrogators want to here.
Schulz notes the fact that the defenders of the implausible “ticking bomb” scenario “rarely cite verifiable cases from real life that mirror its conditions. Israeli authorities, for example, have often made the general assertion that their interrogation practices have saved lives, but they fail to detail specific examples…” Faced with a potentially contradictory “success” example – of the torturing of `Abdul Hakim Murad – Schulz notes that Murad not only provided information related to his actual involvement, but also to those unrelated, and as far-flung as the Oklahoma City bombing!
Schulz continues with the example of Israeli torture, citing a Palestinian youth who was first tortured, humiliated and then later returned, motivated toward retribution as a suicide bomber. Furthermore, he concludes the example of Israeli torture gone awry by citing:
…the Israeli High Court found, to its chagrin, “moderate physical pressure” to obtain intelligence not only tended to morph into unqualified torture but was gradually applied to more and more people – not just the ticking bomb terrorists.
Schulz then carries the argument to its logical conclusion: if torture is justifiable in cases of 100% certainty that the individual to be tortured is in fact a terrorist, then what of those cases where it is less certain; 50% certain, 10% certain. What of torturing the individual’s wife, children, and so on? Where does one draw the line, or as Schulz phrases the question, “at what point do we truly give up our souls?”
To this end, we must conclude where Schulz begins; noting that, just as Shue speaks of a “case just like this,” the 45% of Americans who reported in October 2001 that they approved of torture were in actuality stating approval only of the “torture of known terrorists if the terrorists know details about future terrorist attacks.” That is, though proponents of necessary torture, of the so-called ticking bomb scenario, cite the alleged “popular desire” for law enforcement to “do whatever it takes,” this hypothetical support is irrelevant to any but the most implausible of scenarios; scenarios which law enforcement is neither faced with, nor is honest with the general public about the non-existence of. To this end, they – and the proponents of torture who would invest them with such discretion – misrepresent the effectiveness of torture in scenarios which they do face; misrepresent the long term consequences on the slippery-slope of civil rights erosion; and misrepresent the largely unforeseeable long-term negative repercussions which their actions have on the very cause they seek to advance.