Markkula Center of Applied Ethics

Torture: Is the Ticking Bomb Scenario the Right Approach?

An edited transcript of a discussion on torture in the Emerging Issues Group at the Markkula Center for Applied Ethics, September 14, 2009

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"Welcome to Emerging Issues in Ethics, a program of The Markkula Center for Applied Ethics at Santa Clara University. I'm Miriam Schulman, the center's communications director. Today we're going to be talking about the issue of torture. I'm joined by Kirk Hanson, the center's executive director, Peter Minowitz from the Santa Clara University department of Political Science, Jim Ballasone, the executive in residence at the center, Judy Nadler, senior fellow in government ethics at the center, and David DeCosse, director of Campus Ethics. David will start our discussion."

{DD} "Today we're going to talk about the extremely difficult issue of torture-difficult in terms of the way it's played out in American political discourse. And we've been especially struck by a recent article by Richard Cohen that appeared in the Washington Post. It raised some very difficult issues about this topic. I'd like to just frame the discussion by saying that I think Cohen's article, and the larger discussion about torture in the United States,-in terms of Ethics-really puts forward the question of the importance of where one starts in thinking ethically about any situation. The starting point for Cohen's article, as has been the case for many other discussions of torture in the US, is the hypothetical of the ticking time bomb: the terrorist is captured, he has got information, we have got a well-intentioned interrogator…wouldn't you, for the sake of security, do anything you possibly can to get that information from that person, including using the acknowledged efficacy of torture? But I think it's very clear, actually, that that example, as the starting point for our conversation, in effect, carries with it an enormous number of assumptions that are really profoundly, morally, and ethically problematic."

{KH} "I found some of the commentary about Cohen's article quite persuasive. And it seems to me we have to put on the table the assumptions made in Cohen's article. One of them is that you got the right person, the person involved in a plot. Number two, that that person knows what you need to find-the ticking time bomb. That the individual is well-intentioned, who is about to do the torturing. And, then, that torture itself works. And I think there are so many questions about each of those steps, that to adopt a policy that permits torture simply runs into the reality or the uncertainty about those facts. And one more problem…it seems to me the argument does have to start from the other end, which is that torture is a violation of human rights, and you better have an overwhelming case to permit that kind of violation."

{PM} "But that could well be Cohen's position. As he emphasizes, he's posing questions. He's not simply willing to assume that under all possible circumstances any form of coercive interrogation is forbidden. And, in that particular piece we read by Larissa Alexandrova from Huffington-I mean, that was a disgrace. It was repetitive, it was exaggerated, it accused him of being a racist…you know, ethnic profiling, which had nothing to do with his piece. So, it's very easy to get carried away. But even you… I think you articulated a position that he might well agree with, that yes, there has to be, before we proceed, an overwhelming confidence that we've got the right person at least. And even then he has questions, because he says he's not convinced that it always works, that there are difficulties."

{KH} "But Peter, how can you be sure-isn't this going to be abused if you once make it possible? Isn't it inevitably going to be abused, as it appears to have been during the Iraq war?"

{PM} "Absolutely. And that would be a reason to say, as a general rule, that the US does not torture. If you happen to be there, and you're a duly authorized law enforcement person, and you've captured somebody, and you yourself are convinced that this person is involved, that there is a ticking bomb, you might just act desperately as you would speed-break through red lights to take the dying person to the hospital."

{DD} "But Peter, even that example, I think, is what has swayed American public opinion to the degree it's been swayed in support of this policy of torture that we have been following. And I think there are so many problems, even in the way you put that. Let's say this person is absolutely certain-well who is absolutely certain about what? And how many instances of so-called absolute certainty have actually led to disasters in the last years…Abu Grahib, people dying in custody in Iraq, in Afghanistan…no demonstration of the efficacy of torture. A week ago Ali Sufan, the FBI agent who interrogated Khaliq Sheik-Mohammed-as well as Zubaida, the other Al-Qaeda leader-got information from those people, information that we really needed from them, via non-coercive means. So I think that this notion of the example being put forward…say you've got that person, you know for sure they've got information, aren't you going to do anything? That example, to me, is an illegitimate moral example, one that we should not even use."

{JB} "I think that the presumption in our legal system, to handle a whole distribution of cases, is there's a presumption of innocence. So the thought is, even confessions that now end up being recanted…So the assumptions that Kirk really lays out says that…I don't see that there's any way you could create a form or a policy that says anything other than torture is against the law, illegal, and a clearly immoral act."

{DD} "I also think, and I would disagree Peter, I think Alexandrova's article was excellent. I think she raised all kinds of important questions that usually go unasked about this topic. And I think one of the most important things she raised, I think something with tremendous ethical significance, is this challenge, this claim by Cohen that there is a legitimate desire for absolute security. And I actually think she was right on the money on that-that that is an illusion. And in a way our entire system of government, in terms of handing over presumptions of innocence, thinking about various rule, governing the use of force, whether military or police…all of these things, to me, are premised on the fact that we will not abide by this demand for absolute security, that we are willing to put considerations of liberty, and human dignity, before that demand for absolute security. And I actually think Cheney has gotten away with that. He's put that forward, and it's a beguiling kind of mantra to present to people in a way-who doesn't want absolute security? But actually, honestly, I don't think we do."

{PM} "I would agree with the way you put that, and I did think that was her best point, and really her only powerful point. But things get a little fuzzy because we have to make this trade off all the time, any time violence is used, any time someone's even locked up in jail. We'll put away a pedophile, and a serial killer and a rapist-are we one-hundred percent certain that the person is guilty? Rarely. In warfare, I mean even ones going on right now in Afghanistan, as a recent example, a drone strike is ordered: they think there's Taliban, they have perhaps reasonably sound reports given…a hundred people die. So in the law enforcement context, as a rule, yes, the person is innocent until presumed guilty, they have very careful protections set up. But that can't possibly transfer into a war scenario. Terrorism is somewhere in the middle because these people are not ordinary criminals. They're out to inflict mass slaughter, to bring down our whole government, if possible. Al-Qaeda would set off a hydrogen bomb anywhere to advance its agenda. It would be unconcerned about the number of people who die, even if millions of Muslims are part of the toll. And they're the ones being killed mostly by terrorists now, and suicide bombers in Iraq and elsewhere."

{MS}"I think law is supposed to be aspirational, it's supposed to say what kind of society you would like to be, and it's supposed to set boundaries. So, to me, you have to have a law that's very clearly against torture; it's not what we want to do. If the situation arose, that somehow you did know that this person had the information you wanted, you should be willing to stand up afterwards and say, 'I know I broke this law, and I feel really bad about it. It's not something I would want to do. Do to me what you feel you need to do."

{DD} "I actually would like to agree with two points that have just been made. Peter's point, that this is not purely a law enforcement matter-I think that is right, I think that it's a mistake to consider this engagement, confrontation with Al-Qaeda only in those terms. I don't think it's purely a matter of the law war either, and I think it is occupying this in-between zone that's forcing some kind of creative thinking on the part of people. And I also like the example you raised, Miriam, which calls to my mind the moral philosopher Michael Walser's example of the problem of dirty hands, in which he really does say that we ought to have laws that kind of hold and maintain a very firm line against practices that we consider abhorrent, but that there are maybe times when very difficult things have to happen. And yet, even after those times, the political officials who exercise those decisions assume that responsibility. Part of that assumption of responsibility does involve them publicly then being accountable for the actions they've taken. Even if we were to say that would be an acceptable way to deal with this issue…I think one of the huge failings of the last years is that there has been nothing like that, in terms of a public accountability."

{JB} "This has been a debate that's been going on quite a while. So I 'googled' this tradeoff in 1738 in Morichard's Almanac. A good friend Benjamin Franklin wrote, 'people willing to trade their freedom for temporary security desire neither and will lose both,' followed by, 'if we restrict liberty to attain security we will lose them both.' And there are a number of derivations. The thing that is worrisome about this problem is it really implies, in the discussion we're having, that I'm willing to trade off the freedom of one of them, a suspected terrorist, for my temporary security, which is, to me, even a lower level of test about the ethics. So I've always tried to think of this in terms of the freedom of my wife or my children… Would I be willing to increase the odds that I could be taken into custody, and that my child would be threatened, or actually tortured, to provide information that I might or might not have? And so when I put that actual individual test forward, and being a big fan of Benjamin Franklin…I think we have a long history of opposing this concept."

{JN} "My big concern is, where does it end? At what point when we go to the airport is it ever not going to be orange? At what point will the librarians not feel they are under pressure to divulge information about the circulation of records of individuals with no probable cause and with no ability to notify those individuals? At what point are we going to return to normalcy and the kind of personal liberties that we once had? How many excuses are we going to be able to manufacture to continue these types of patterns?"

{KH} "I think that helps me make the transition to how would I solve the ticking time bomb problem. As a student of organizations, I believe you ban certain things because then you'll use them about the right number of times. And so my solution to this one is we ban torture, we do leave a loophole that the president can make a finding in a specific case, and God hopes that would not arise except once in every five years or something like that, where we would have something under the kind of time-frame pressure that the ticking time bomb question imagines. But as an ongoing problem, I think that the effectiveness, the questions about the effectiveness, the questions about the good intentions of the prosecutors, the questions about whether an individual actually has the information, are just so great that you ought not to engage in it as a matter of course."

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