Tuesday, October 10, 2006

Torture and the Ticking Time Bomb


I am amazed that scenarios such as the “ticking time bomb” (TTB) continue to be influential in the public debate over torture and interrogation. Kim Scheppele, who posts here, has a fine article tearing this scenario apart in “Hypothetical Torture in the ‘War on Terrorism’” to be published soon in the Journal of National Security Law & Policy. What disturbs me is the moral shallowness of this particular scenario. Defined in a common sense way, torture involves deliberate cruelty and, as such, should be absolutely prohibited.

I haven’t followed the blogosphere debate in detail, and I certainly hope I am not repeating anyone’s arguments in what follows. I noticed that Judge Richard Posner’s recently published book, Not a Suicide Pact (Oxford Press, 2006), relies on the TTB. If nothing else, Posner is well read, and thus if he uses the TTB without qualification it is likely there is not yet a set of well-known objections.

Posner begins his discussion of torture (in a chapter on “Rights Against Brutal Interrogation”) by employing a consequentialist calculus: “The value of the information sought depends in part on the menace to social welfare that has motivated the interrogation. If it is dire enough and the value of the information great enough, only a die-hard civil libertarian will deny the propriety of using a high degree of coercion to elicit the information. It might be the whereabouts of a kidnapping victim, the location of a ticking time bomb, the site of a biological weapon about to be deployed, the identity of key terrorist leaders, or the details of terrorist plots.” Posner’s subject is constitutional rights, not morality. But it is not only the “civil libertarian” who is interested in assuring humane treatment but everyone concerned with doing right and upholding basic moral values.

Posner then asserts that torture is often effective (more effective than other justifiable forms of interrogation), without any detailed review of the evidence (for an example of a detailed review, see Kim’s article). Posner thinks the ground of objection to torture is “revulsion” alone. He makes the useful comment that we should not confuse torture as a routine practice of dictators “with torture as an exceptional method of counterterrorist interrogation.” But he thinks public opinion is against torture: “Public efforts at justifying torture are doomed in the present climate of opinion. . .” Posner comments: “In the era of weapons of mass destruction, torture may sometimes be the only means of averting the death of thousands, even millions, of Americans. In such a situation it would be the moral and political duty of the president to authorize torture. It seems odd that people who accept this point nevertheless denounce torture with such ferocity.”

Posner thus relies explicitly on the TTB and similar scenarios. In understanding what is wrong with the TTB, we would do well to remind ourselves that it is a fantasy, and a fairly insidious one at that, judged by its ubiquity. The TTB is not a historical episode that we can examine in all its complexity and, as far as I know, nothing like it has ever happened (I am assuming that the TTB scenario involves a terrorist attack intended to kill at least thousands of people and is thus not about an “ordinary crime”). Instead, it is a hypothetical designed to score moral and policy points. That it has apparently scored so many is a disturbing testament to the lack of moral imagination in current public debate. For one is allowed, I believe, to counter fantastic hypotheticals with other hypotheticals.

In a democracy, I do not think we should ask our fellow citizens to sacrifice themselves or their principles for the public good unless we are, at least in principle, prepared to do the same. We may not be capable of serving in the military, but we should understand what that means before we ask our fellow citizens to fight for us. One of the signal characteristics of the TTB is that it treats the interrogators and their agency, their principles, as a black box. Who they are is unknown. But we should not assume “democracy for us, dictatorship for the interrogators.” The interrogators are our fellow citizens, part of our democracy, and it would be wrong to ask them to do something we were not prepared to do ourselves. Thus the democratic implication of the TTB is that we must steel ourselves to do something that is very unpleasant, but necessary.

So let us imagine ourselves in the interrogation room with the suspect. Evidence collected from his apartment certainly seems to indicate that he has knowledge of a looming terrorist attack, but he is begging for mercy. Too bad, isn’t it? All we have done is deprive him of sleep and clothing. And it is a bit cold. Unfortunately, he may be scared and cold, but he hasn’t given us one scrap of useful information. And we’re under some time pressure. Your superior has an idea. For better cover, the suspect was living with his family, a wife and young daughter. We’re detaining them in another room. The evidence seems to show the suspect cares for them. Perhaps if we brought them into the room? Your superior warns you to steel yourself for what comes next. Perhaps the suspect will respond to mere threats that they might be put to death in front of him. If threats are not enough, however, we must be prepared to do the worst. Of course, in some cultures there are acts regarded as worse than death. Your superior looks at you. Do you understand what he is talking about? Of course you do. You are experienced in the ways of the TTB, of doing what is necessary to elicit information under the terrible pressure of a deadline.

I really hope I don’t have to elaborate further this fantastic scenario of moral corruption. Our popular culture is full of faux scenarios of torture and cruelty. Just check out your local video rental store. What’s amazing about the TTB is that it is taken to be “real,” a serious matter for public debate. But it’s no more real than my scenario, a Tom Clancy novel of military adventure or a superhero comic.

The TTB counts on eliciting a certain sort of response. Of course, “the president would have to authorize torture” to prevent millions from dying. But surely it puts a slightly different spin on the situation to imagine that you are the one responsible for making sure the interrogation is effective. And you will have to live with the consequences if you turn out to be wrong. What wouldn’t you do to prevent millions from dying? Well, I wouldn’t engage in torture, child abuse, murder, rape and a whole long list of morally corrupt acts. And I’m willing to bet you wouldn’t either. Scenarios like the TTB are well designed to cloud our reason and judgment. For that reason, we should avoid them and concentrate on the ways in which we can realistically prevent terrorist attacks.

I almost forgot. After you finish following orders and torturing the suspect, it turns out he really didn’t know anything. That’s the way almost all of these scenarios end, isn’t it?


Professor Griffin: Posner begins his discussion of torture (in a chapter on “Rights Against Brutal Interrogation”) by employing a consequentialist calculus.

This reflects the ascendancy of so-called economic analysis, in which any argument appearing to be a cost-benefit analysis is credited as conclusive. But like the failures of Marx in his equation of capitalism (somehow Marx's equation only ever yields a positive result for the capitalist) so too Judge Posner here is juggling variables without regard for the possibility of dividing by zero. The cost-benefit analysis in the TTB hypothetical must be offset by the cost-benefit analysis, non-hypothetical but instead based in thousands of years of tragic human history, of sacrificing principle to expediency. Note, however, that Judge Posner tries to close that door with the semantically charged "die-hard civil libertarian" phrase, as if this somehow eradicates the very real moral, social and political costs of unjust government practices.

I'm a lawyer from Argentina and I have heard the tickin bomb scenario in the lips of those who defend the Argentine military regime that resulted in 30.000 "desaparecidos" or missing citizens. For me, it puts the current policital debate in the US in a clear perspective.

Here is the link for the journal. Kim Scheppele's article can be downloaded as a PDF, and the other articles look interesting too...

McGeorge School of Law (UOP) --

Vol. 1 2005 No. 2

Symposium: Fighting Terrorism with Torture: Where To Draw the Line?

* Hypothetical Torture in the "War on Terrorism"
by Kim Lane Scheppele

Symposium: Lawyers’ Roles and the War on Terror

It's critical to keep our moral sense distinct from our political calculi. From a moral point of view, no utilitarian calculus (Bentham and Mill, notwithstanding) can serve as a moral determinant. It may, however, serve as a political calculation; indeed, democratic majoritarianism by its nature is a political utilitarian calculus.

Rightly, no cruelty can ever be morally justified. But politically, one encounters the "lesser of two evils" as part of the human condition. War and the TTB are but two cases. Thus, while war and torture are never morally right, self-defense and defense of innocents may be politically expedient, even necessary, even if the ends do not justify the means.

The utilitarian moralist cleverly creates a false morality by conflating these disparate aspects. Who would not harm one to save a hundred, ten, even two? Then, the utilitarian shifts the politically expedient to the moral necessity, as one must act to benefit the most, even if it harms others. Then it insists the two were the same moral dynamic and thus a moral justification.

As most moral philosophers remind us: The utilitarian calculus can lead to the "justification" of slavery, holoccausts, gulags, purges, or any other attrocity wherein "the greatest good for the greatest number" is a "moral" or political determinant. Yet, these very states of affairs violate our moral sense, so this conflation of moral and political into the same sphere is obviously wrong.

Rather than conflate the two, we must insist on their separation. Similarly, as much as we deplore the thought that serious harms may ever be justified politically -- that we must choose between the lesser of two evils -- the human condition forces this unpalatable fact upon us. But clearly it's morally and intellectually preferred to choose between the lesser of evils, than using some calculus to guarantee that an intrinsic evil is morally right.

Choosing to make any evil, even the lesser of two evils, politically expedient (and I stress "may"), does not make an evil morally right. It is still evil. Sadly, too many people despise this human state of affairs -- of being put in the uncomfortable situation of choosing netween two evils, that they use utilitarian calculi as their casuistry toward moral justification. Once they make this move, then all sorts of moral evils metamorphize into moral "goods." Indeed, whatever the majority commands becomes morally right.

Whatever the "greatest good for the greatest number" (the utilitarian calculus) accomplishes, it does not determine moral outcomes or the moral value of any act. It may provide the basis of political expediency, it may help in choosing between the lesser of two evils, but it never determines what is morally right to do. Most moral philosophers get this. Most ordinary souls sense it. Yet the casuistry is too appealing, and often too appalling, to allow us to make this shift a feature of our moral landscape. Better to admit that some of our choices are between two or more evils, than to color an evil as "good." The utilitarian is always confident of making some intrinsic evil morally good, and the sooner and oftener we prevent this sophistry the better.

We could also borrow the framework of First Amendment prior restraint:

Just as we never (or only hypothetically) suppress speech harmful to national security, but reserve the right to punish it after the fact (i.e., the Pentagon Papers case), we could also keep TTB torture as a prohibited offense but reserve the right to excuse the "Jack Bauer" torturer after the fact.

The could be done via a special jury verdict (similar to capital punishment verdicts) or by executive pardon.


Your have written a compelling response to the Ticking Time Bomb Scenario. The TTB is used to score rhetorical points, and to justify heinous conduct. However, although I fully agree with your argument, and am absolutely against torture, I wonder whether there is a response that better acknowledges and meets the intuitive appeal of the scenario. In order to do this, one must accept the basic premises of the TTB scenario (recognizing that it is unrealistic and stacked and faulty in many ways).

When working through this issue, I have wondered what I would do if my young daughter was abducted and held captive in an undisclosed location by a bad guy. If I happened to get my hands on that guy, how far would I be willing to go to find out where my daughter was being held? Time and again, my honest answer was that I would do whatever it takes, including inflicting severe pain and permanent bodily injury, if necessary, to get this information from the bad guy.

If I am willing to do that, then it must be acknowledged that there are situations in which torture would be considered even by those opposed to torture (assuming other opponents share my position). Although there are big differences between these scenarios, the TTB scenario intuitively works the same way: by placing on the scales an extraordinarily compelling cause that outweighs the normal absolute ban against torture.

Now comes the key difference with TTB and how it is being used by proponents of torture. The people who invoke TTB want to whitewash their conduct, making it legal and moral, and ordering someone else to do it. In my scenario, in contrast, I did what I did directly, with my own hands, and I would not claim that it was either legal or morally justified. My actions--imagine the worst--were evil. But I did it because I felt it was absolutely necessary, given the stakes. I broke the law and should be punished.

If Bush Administration officials approached the issue the same way--that is, they would have to do it with their own hands and they would thereafter suffer the legal punishment--they would not be pushing for torture. And if that is indeed the case, it demonstrates the lie perpetuated by the TTB scenario.


Just as we never (or only hypothetically) suppress speech harmful to national security, but reserve the right to punish it after the fact (i.e., the Pentagon Papers case), we could also keep TTB torture as a prohibited offense but reserve the right to excuse the "Jack Bauer" torturer after the fact.

The law already provides for this with the defense of duress/necessity. See US v. Bailey, 444 US 394, 100 S.Ct. 624 (1980).

I blogged the "TTB" almost two years ago now. Here's my response to the comic book and "24" aficionados that want to change the laws. Just remember, dear friends, that the question here is not what is to be done in such a scenario as the "TTB". It's what should our policy be, and what should our laws be. I think we're perfectly capable and able to deal with the "TTB" scenario appropriately no matter what our laws are. It's what's happening in Guantánamo, Abu Ghraib, and "undisclosed locations" that is truly the concern, and that's what we need to discuss. Posner doesn't want to do that, and invents fictions to pontificate on from the lofty realms of academia.


Please find below a link to the blog about a motion to dismiss of Padilla for outrageous government conduct. Padilla asserts he was tortured. TTB is for fantasy worlds. This is real. And, as if it makes a difference, it is an American alleging torture by Americans on American soil.


Just because you're smarter than I, doesn't mean I can't call you a schmuck.

Yeah, I'm looking at you, Posner.

Cf also where I note our intrepid hero's desire to turn back the civil-liberties clock by fifty years.

Why anyone listens to the man escapes me.

Yes. The problem with the TTB scenario and other so-called justifications of is that they are so riddled with hypotheticals.

It is my understanding that if the goal is to extract useful information, torture is not the way to go. A little bit of stress may indeed be useful, but the fact of being interviewed at all (and having been captured/arrested at all) is enough right there.

It is very well known that the way in which torture is effective is, it terrorizes persons and populations.

And anyway, is it not our freedoms, including freedom from torture and the right to a fair trial, that we are supposed to be fighting for? If not, then we might as well let our 'enemies' take over and be done with questions of human rights, freedom, and so on!

(Yes, I realize that we're probably just using 'freedom' to dress up a less pleasant truth.)

Thanks for letting me vituperate.

Thanks for the links Charles G.; the first one supplies a list of articles, including one by Sandy Levinson, on the topic.

I second the "schmuck" comment. I will spare a link, but I voiced my sentiments on his criticisms of the 911 Comm. Report. He NYT piece on the press also left something to be desired.

The remarks here on his reasoning process are generous in that they ignore the possibility ... fairly normal in judges ... of largely unspoken assumptions that make things a lot more "obvious" than they truly are.

His economic analysis approach has a Spock-like flavor at time, underlining intelligence (and he has that, and deserves some kudos as a liberal lawyer who spent time in front of him noted elsewhere) is not the same thing as wisdom.

On Padilla, Glenn Greenwald has a good/shocking piece on his treatment. A must read really.

The Journal of International Criminal Justice
Bad Torture — Good Torture?.

As with discussions of the "logic" of those who oppose abortion 'as murder' except in cases of rape or incest, the point is not to resolve conflicts absolutely but to understand them. Read Dworkin on "respect."
In a similar case:
Q- What man has the right to send another to his death to save the live of 3 others?
A- A military officer.

The reasoning of the military is not absolute logic but the logic of social stability. The Military is run on a system of taboos. No fraternization etc. Intellectually quaint but practical.

Torture should not be legalized, but there are situations where it will be done. And perhaps the person who does it should be punished even when it works. The Syrians had a technique for the ticking bomb scenario. Give the man who knows where the bomb is a cell phone.
"Call your mother." At the mother's house, a man picks up the phone.
Don't try to resolve every god damn contradiction. That's a liberals absurdity. Understand your own absurdity. Then look at others'

D. Ghirlandaio:

Torture should not be legalized, but there are situations where it will be done. And perhaps the person who does it should be punished even when it works.

That is precisely what I've been saying for quite some time now. See my link above.

I have yet to see anyone come up with a reasonable counter. The hypothetical millions are saved, and our legal system remains intact.

There's (at least) two unstated assumptions in the pro-"TTB" argument, outside of the question of whether torture is indeed effective): That people will only torture in a "TTB" scenario if they're legally immunized, and that any such legal immunization will only be used for the extreme "TTB" situation. I'd note that the first is probably not true, and as to the second, none of the pro-torture proponents are arguing for a "torture for TTBs only" law, but rather for a more general law allowing or excusing torture under far more 'debatable' circumstances (i.e., the MCA bill) ... and in the process, writing out any kind of independent review of the operation of the law in practise.


Not to get excessively academic, but one ought also to distinguish between morality and ethics just as I've distinguished utilitarianism as a political, not an ethical or moral, calculus. In our lives, obviously, they all interact, but as species of examination, they are categorically distinct.

Sometime in the Seventies, moral philosophers shifted from the "rational moral schemes" toward the interpersonal. It dawned on many that the dictates of reason (say, Kant's) is too demanding, too impersonal, and lacking contextuality, while utilitarianism (a calculus) leads to exorable consequences. At the same time, evolutionary biology (and later psychology) picked up the same perspective. Whatever our ethical and moral issues, at core, they must reflect our biological human nature.

Our language reflects this change of focus. Nearly every post here uses intuition or something similar to express the moral sense. The apotheosis of reason, Rawl's "veil of ignorance," the categorical imperative, the utilitarian calculus may be instrumental in developing our moral sense, but it is our moral intuition that operates, not some rigid rationality. Brian Tamanaha's example of his daughter has not been ignored, but rather has been behind this shift in focus. The absurd notion that I must care about equally some unkown individual in some far off country as a family member I know and love just is absurd. Sentimental humanism aside, our moral intuitions change as the individuals and contexts change, and the closer to home they come, the more significant our intuitions change. If an Iraqi thief kills another Iraqi in the commission of his crime, or if my mother is killed by a next-door neighbor, which is more likely to influence my moral sense? (The question is obvious and simply rhetorical.)

As obvious as this difference is, moral philosophers used to discount this (Utilitarian Peter Singer still does.) But it just is not human to apply the same moral intuition to those close to us and those worlds away. It might be noble, even rational, or it could be just as obviously absurd. Biologists Trivers and Hamilton (along with Sober and others) demonstrate that kin are more important in our altruism than some stranger across the street -- much less across the globe. Our altruism has a genetic profile and is colored by kin relations. The same dynamic applies to injustice. As much as I lament Jose Padilla's situation, if it were my brother, I'd be doing more -- far more -- than what I am doing for Padilla. A spouse or beloved would only intensify the interest and my redress of grievances. Still, my intuition tells me that if Padilla can be wronged "in our system" then too I can be wronged, and so his case has my interest and revulsion, but if he were family, I'd up the ante significantly. This is where "sympathy" or empathy enters our moral sense, a critical feature, but attenuated by distance.

The artifice of TTB, therefore, is clever for the rogue, but it has little correspondence to our moral intuitions in practice. Creating a dire situation in abstract is not how we function, nor much reflective of real life, although it may fine-tune some intuitions. As other writers have observed, TTB is a diversion or entrapment to justify what we morally know is wrong. Creulty can never be morally justified, and dressing it up in a utilitarian calculus only exposes the flaws of utilitarianism as a moral scheme, when at best, it is a political calculation (and not always the best or most reliable). But as Richard Posner, no intellectual slouch, demonstrates, the artifice is seductive -- dangerously seductive. But however it is dressed, is still immoral. It violates our moral sense and intuition. Not even "reason" can argue against that.

I jumped too fast. Brian Tamanaha puts it well.

> [...] But surely it puts a slightly
> different spin on the situation to imagine
> that you are the one responsible for
> making sure the interrogation is
> effective. And you will have to live with
> the consequences if you turn out to be
> wrong. [...]

This is what sets apart academics who
talk and theorize, versus grunts who
actually carryout the work. You
personally may be unable to make such
choices, but thankfully there exist
non-pansy folks looking after safety
who are willing to answer your
rhetorical question with
"yes, if necessary".

geoffk: yes, "might" works both ways.
There exist points though, when one must
take a stand despite the uncertainty:
make an educated judgement, estimate
likelihoods, and take action.

All of the moral revulsion to torture, and especially all of that in the TTB scenario which involves the purposeful torture of one individual assumes that torture is a fate worse than death.

Is it?

I think that despite the appeal or the non-appeal of torture, I think we all understand the moral equivocation of total and limited war. That is to say we more readily accept in these political times the real death of non-combatants as collateral damage, or as accepted damage.

My memory may be faulty, but I cannot recall such moral outrage over the battle known as Second Fallujah in which certainly innocents remaining in town were killed after recieving orders to leave the city. The moral outrage of Abu Graibh was much more pronounced.

And we clearly know that perfidious combatants encountered on the field of battle can be shot on sight. Mercenaries, under Geneva, are not afforded the protections of soldiers in uniform. If there are conditions which a life can be taken in the moral context of war, how can it be that torture

The answer, it seems to me, is that there are 1000 ways in which that which goes by the name of torture can be preferable to death, and likely another 1000 worse than death.

If there is ever a case in which torture in the context of war is not a fate worse than death, this is a question of enumeration, so long as killing is acceptable in the context of war.

TTB as exemplified gratuitously is not. The problem is not solved compeltely.

It seems to me that until you define what torture is, you have no point. How can you be opposed to something that you have not even defined? How can you definitively say that you would not do something when you haven't even said what that something is?

Would you define pinching someone as torture? Would you refuse to pinch someone to try to elicit information from them?

Until you define what torture is, your words are full of sound and fury signifying nothing.

No wonder you're breathless after such hyperventilation.

The only connection this post has with reality is the word 'torture', and only then because you and your political fellows have so consistently misapplied it!

Shooting detainee's children?! You're living in a fantasy world.

Alan Dershowitz, when arguing for "torture warrants," also used the TTB scenario. In 2002, William Schultz, the executive director of Amnesty International, said the following in his critique:

To see more clearly the shoals upon which the "torture warrant" flounders, consider this. There is no doubt that despite official efforts to eradicate it, police brutality is practiced in many US jurisdictions and probably always will be. Some police officers will claim, in their more candid moments, that the use of excessive force is often the only way to protect the lives of officers and the general public. Why ought the police not be able, therefore, to apply for "brutality warrants" in specialized cases? Why ought police officers who believe that a little shaving of the truth on the witness stand is worth sending a bunch of drug pushers to prison, thus protecting hundreds of youngsters from a life of drugs and crime, not be able to seek "'testilying' warrants"? Why ought correctional officers who argue that allowing dominant male prisoners to rape other prisoners helps preserve order among thugs and thus protects the lives of guards not be allowed to seek "warrants to tolerate prisoner rape" in particularly dangerous situations? The answer in all cases is the same: because the act itself (brutalizing citizens; committing perjury; facilitating rape) is itself abhorrent and illegal. Dershowitz's analogy to search warrants fails because, while a particular search may itself be illegal, the act of searching is not ipso facto unethical or a crime. For a society to start providing its imprimatur to criminal acts because they are common or may appear to provide a shortcut to admirable ends is an invitation to chaos.

A piece about this from 2004 might be useful for those who are unclear about "the definition of torture." It also shows how the hypothetically neat TTB scenario is not likely to translate well into reality:

The ticking bomb scenario assumes a situation where the authorities know the about a plotted crime, but still don't know enough to begin an effective investigation. Somehow, we are supposed to believe that there might be a situation where authorities have certain knowledge of a terrorist's guilt without knowing exactly of what he's guilty. In this case, the authorities know who with certainty (the terrorist leader they have in custody), they know what (a series of bombs set to go off around the city), they know when (within the next twenty-four hours), but they don't know exactly where. Does it seem realistic that they would know who, what and when, but not where? Wouldn't the same source of the information about the who, what and when not also know at least some specific locations of the bombs and some other possible ones? It seems unlikely that one would have information in such detail without knowing more than this scenario allows.

Even in the scenario as given, we are told that the bombs are planted in some undisclosed apartment buildings throughout the city. With so little time, the authorities' efforts might be better spent evacuating any potential target in order to save lives. Torturing the suspect won't help get people out of apartment buildings.


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