Wednesday, May 04, 2011

Still Ticking, Ten Years Later

Alice Ristroph

Remember when proponents of torture used to invoke the ticking time bomb? To show that torture was sometimes permissible or even morally required, people would imagine a ticking bomb, a terrorist in custody who knew the location of the bomb, and the imminent death of gazillions of innocent civilians. Wouldn’t you use the waterboard? Tick, tick.

The fantasy of the ticking bomb was designed to make people more comfortable with torture, in part by suggesting certain conditions on its use: most importantly, an imminent threat of catastrophic harm that could be averted by torture and torture alone. The renewed endorsements of torture after the death of Osama bin Laden illustrate that it’s not about the ticking after all. On the revised account, the torture of suspected terrorists was justified if it yielded one piece of information that contributed to the eventual success, years after the torture took place, of a long-term manhunt (a hunt based, by all reports, on a vast array of intelligence from many different sources). Torture need not “work” quickly, it need not be the only means of gaining the information, and the information need not be essential to avert imminent catastrophe. Indeed, torture need not be concerned with future threats at all – it seems widely acknowledged that killing bin Laden was a matter of “bringing him to justice” for past deeds, or, as one honest fellow put it, exacting revenge.

I haven’t blogged in a long time, in part because I’ve been occupied by a book manuscript about the ways we distinguish legitimate violence from illegitimate violence. Across different legal and political contexts, there are familiar principles of distinction: imminence is one (legitimate violence responds to an imminent threat); necessity is another (legitimate violence is necessary to avert some significant harm). In several arenas, including policing, prisons, and military action, I’ve found that these principles can never do all the work of distinction that they are asked to do. It’s not just that imminence and necessity are in the eye of the beholder, or rather, the eye of the agent of violence. Once we get used to doing a certain kind of violence, we tend to stop caring about imminence or necessity – or proportionality, or judicial review, or other familiar principles of distinction. And, with due respect to others here at Balkinization, I suspect effectiveness is just one more principle of distinction that turns out not to matter very much. Really, there seems to be only one durable principle of distinction, one solidly reliable way to differentiate legitimate violence from illegitimate: the difference between us and them. Torture is legitimate when it’s something we do to them. The ticking bomb has fallen silent, but this idea endures.

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