Ticking Bombs and Slippery Slopes

Immediately after 9/11, the hand-wringing began. From Harvard Law School’s Alan Dershowitz to Newsweek’s Jonathan Alter to Sen. Charles E. Schumer (D-N.Y.), influential commentators began to ask whether the United States should consider tougher interrogation techniques -- maybe even torture -- for suspected terrorists.

Variations on the same thought experiment were evoked by all: Imagine that a terrorist has hidden a powerful nuclear bomb in Los Angeles, scheduled to detonate in a few hours. He has been captured, but sneeringly refuses to reveal the whereabouts of the bomb. Wouldn’t it be justifiable to torture this one man to make him reveal the bomb’s location -- so that millions of people could be saved?

In this imaginary scenario, the interrogator is no sadistic thug -- far from it. He’s a patriot and a hero who turns to torture only with vast reluctance, and only for the greater good.

The so-called ticking-bomb scenario has proved remarkably effective as a rhetorical tactic for defusing opposition to controversial interrogation techniques. Once you’ve admitted you would turn to torture in some circumstances, how can you object to merely “coercive” techniques -- such as sleep deprivation -- if they might get detainees to cough up something of intelligence value? A few proponents of the scenario even urge the legalization of torture in extreme cases.

But four years later, it turns out our collective willingness to take the ticking-bomb scenario seriously has given us no useful insight into the ethics of the war on terror. Instead, it has helped pave the way for the abuses that continue to be uncovered at interrogation sites from Abu Ghraib to Guantanamo Bay to Bagram Air Force Base in Afghanistan.

Ticking-bomb scenarios are dangerously misleading. First, they begin by assuming the guilt of the suspect. In real life, we rarely have such certainty: More often, as we’ve seen since 2001, U.S. interrogators hold a number of detainees, some probably guilty of something (though not always what we think), others probably innocent. The cold utilitarian logic of the scenario suggests we might have to torture the guilty and innocent alike, if we believe that only torture will reveal which detainees actually possessed information that would avert a catastrophe.

Second, proposals to legalize torture in extreme situations misunderstand existing law. The law already has adequate mechanisms for recognizing that terrible circumstances sometimes force good people to choose between two evils: the defense of “duress,” for instance, can be invoked when a defendant has committed an illegal act under threat; “necessity” can be invoked when an illegal act is committed to avert a greater harm. Doctrines of prosecutorial discretion and executive clemency also reflect our awareness that not every illegal act deserves to be punished.

If we legalized torture in some situations, it would quickly become routine. How would we decide which dangers are sufficiently extreme to justify torture? Nuclear devastation of L.A. certainly seems to qualify. But would we be willing to torture someone to locate a bomb in a school? And if we’re going to be so utilitarian, why draw the line at torturing only suspects themselves? If a suspect still won’t talk, why not try raping his wife, or torturing his children? Balanced against nuclear catastrophe, surely these acts too would be lesser evils. Moral slopes don’t get any more slippery than this.

In the end, the ticking-bomb scenario tells us less about law or morality than about basic human psychology: It tells us that there are pressures too terrible for most humans to withstand.

In the ticking-bomb hypothetical, we’re asked to imagine whether our abstract opposition to torture might crumble when balanced against the prospect of the imminent death of millions, among whom might be some of our own loved ones. Who could hold on to an ideal in the face of such intense pressure?

But to ask whether an interrogator’s use of torture would therefore be “justified” in such situations misses the point. We can all imagine exceptional situations in which intense psychological pressure would cause us to commit some morally unpalatable act (treason, murder, betrayal). But that’s no argument for legalizing such practices or eliminating moral taboos against them. Lesser evils are still evil.

Letting ticking-bomb scenarios set the terms of debate also diverts our attention from the real challenges of the war on terror. Torture is always a weapon of the weak: It’s used by those too clumsy to get information any other way. If we had better human-intelligence agents on the ground, with the cultural skills needed to gain the trust of local populations, we wouldn’t need illegal interrogation methods to gain information. And if we got serious about preventing the abuse of detainees, we might find more friends when we look for information.

Long before 9/11, ticking-bomb scenarios were a stock feature of undergraduate ethics classes. They’re a fine trick for generating student discussion. But they shouldn’t be used to inform U.S. law and policy.