[This is an excerpt from an article in the March Harper's entitled "Liberalism, Torture and the Ticking Bomb," by David Luban, a law professor at Georgetown. It was adapted from a Virginia Law Review article by the same name which can be found in its entirety here: http://www.virginialawreview.org/content/pdfs/91/1425.pdf. The longer article also contains full footnotes and citations.]
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...in response to a catastrophe like 9/11, liberals may cautiously conclude that, in the words of a well-known Newsweek article, it is "Time to Thank About Torture."
But the pressure of liberalism will compel them to think about torture in a highly stylized and artificial way, creating what I call the "Liberal ideology of torture." [Note: by "liberal" Luban means capital-L Liberalism, the broad tradition that subsumes both present day liberals and conservatives]. This ideology insists that the sole purpose of torture must be intelligence gathering to prevent a catastrophe; that torture is necessary to prevent the catastrophe; that torture is the exception, not the rule, so that it has nothing to do with state tyranny; that those who inflict the torture are motivated solely by the looming catastrophe, with no tincture of cruelty; that torture in such circumstances is, in fact, little more than self-defense; and that, because of the associations of torture with the horrors of yesteryear, perhaps one should not even call harsh interrogation "torture." And the liberal ideology will crystallize all of these ideas in a single, mesmerizing example: the ticking bomb.
Everyone argues the pros and cons of torture through the ticking bomb. Senator Charles Schumer and Professor Alan Dershowitz, the Israeli Supreme Court, and indeed every journalist exploring the unpleasant question of torture, begins with the ticking bomb and ends there as well. The Schlesinger Report on Abu Ghraib notes that "for the U.S., most cases for permitting harsh treatment of detainees on moral grounds begin with variants of the 'ticking time-bomb' scenario." Disarm the ticking bomb, and the liberal ideology of torture begins to unravel.
Of course, the ticking-bomb scenario is not completely unreal. In 1995, an Al Qaeda plot to bomb eleven U.S. airliners and assassinate the Pope was thwarted by information tortured out of a Pakistani bomb maker by the Philippine police. According to journalists Marites Danguilan Vitug and Glenda M. Gloria, the police had received word of possible threats against the Pope. They went to work. "For weeks, agents hit him with a chair and a long piece of wood, forced water into his mouth, and crushed lighted cigarettes into his private parts. . . . His ribs were almost totally broken. . . . His captors were surprised that he survived." Grisly, to be sure -- but if they hadn't done it, thousand of innocent travelers might have died horrible deaths.
But look at the example one more time. The authorities know there may be a bomb plot in the offing, and they have captured a man who may know something about it but may not. Torture him? How much? For how long? How likely does it have to be that he knows something important? Fifty-Fifty? A one per-cent change of saving a thousand lives yields ten statistical lives. Does that mean you can torture up to nine people? If suspects will not break under torture, why not torture their loved ones in front of them? Of course, you won't know until you try whether torturing his child will break the suspect. But that just changes the odds; it does not alter the argument. Once you accept that only the numbers count, then anything, no matter how gruesome, becomes possible. As philosopher Barnard Williams points out, "There are certain situations so monstrous that the idea that the processes of moral rationality could yield and answer in them is insane" and "to spend time thinking what one would decide if one were in such a situation is also insane, if not merely frivolous."
A second, insidious, error built into the ticking-bomb hypothesis is that it assumes a single, ad hoc, decision about whether to torture, by officials who ordinarily would only do so in a desperate emergency. But the real world is a world of policies, guidelines, and directives, not of ad hoc emergency measures. We would much rather talk about the ticking bomb than about torture as an organized social practice, which would mean asking questions like these: Should we crate a professional cadre of trained torturers? Do we want federal grants for research to devise new and better techniques? Patents issued on high-tech torture devices? Trade conventions in Las Vegas? Should there be a medical sub-specialty of torture doctors, who ensure that captives do not die before they talk? The fiction must also presume that the interrogator operates only under the strictest supervision, in a chain of command where his every move is vetted and controlled by superior who are actually doing the deliberating. This assumption flies in the face of everything that we know about how organizations work. The basic rule in every bureaucratic organization is that operations details and the guilty knowledge that goes with them get pushed down the chain of command as far as possible. We saw this phenomenon at Abu Ghraib, where military-intelligence officers gave military police vague orders like: "Loosen this guy up for us;" "Make sure he has a bad night;" "Make sure he gets the treatment."
Who guarantees that case-hardened torturers, inured to levels of violence and pain that would make ordinary people vomit at the sight, will know where to draw the line on when torture should be used? They never have in the past. They didn't in Algeria. They didn't in Israel, where, in 1999, the Supreme Court backpedaled from an earlier consent to harsh interrogation practices because the interrogators were running amok and torturing two thirds of their Palestinian captives. Mark Osiel, who studied the Argentine military in the Dirty war, reports that many of the torturers had qualms about what they were doing until priests reassured them that they were fighting God's fight. By the end of the Dirty War, the qualms were gone, and, as John Simpson and Jana Bennett report, officers were placing bets on who could kidnap the prettiest girl to rape and torture. Escalation is the rule, not the aberration. Abu Ghraib is the fully predictable image of what a torture culture looks like. You cannot reasonably expect that interrogators in a torture culture will be the fastidious and well-meaning torturers that the liberal ideology fantasizes.
For all these reasons, the ticking bomb scenario is an intellectual fraud. In its place, we must address the real questions about torture -- questions about uncertainty, questions about the morality of consequences, and questions about what it does to a culture and the torturers themselves to introduce the practice. Once we do so, I suspect that few Americans will be willing to accept the ticking-bomb scenario as a serious argument.
A skeptic might respond that my dire warning about a torture culture are exaggerated, overwrought, and (above all) hypothetical. Would that it were so. The secret memorandums by lawyers in President George W. Bush's administration that came close to legitimizing torture for interrogation purposes illustrate the ease with which arguments that pretend that torture can exist in a liberal society, but only as an exception, quickly lead to erecting a torture culture, a network of institutions and practices, such as extraordinary rendition, that regularize the exception and make it standard operating procedure.
The liberal ideology of torture, which assumes that torture can be neatly confined to exceptional ticking-bomb cases and surgically severed from cruelty and tyranny, represents a dangerous delusion. It becomes more dangerous still coupled with an endless war on terror, a permanent emergency in which the White House insists that its emergency powers rise above the limiting power of statutes and treaties. Claims to long-term emergency powers that entail the power to torture should send chills through liberals of the right as well as the left, and no one should still think that liberal torture has nothing to do with tyranny.
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Michael