There is a categorical ban on broadcasting child pornography in the United States. Is that prudent? Victims of the industry suffer horrifically. On the other hand, what if an al-Qaeda terrorist had a nuclear device in Times Square and credibly threatened to incinerate millions of people unless NBC broadcast an hour of depraved smut? Would the categorical broadcast ban seem prudent in that case?
The thought experiment is no less absurd when applied to "ticking time bombs" that can only be stopped by torturing.
In a throwback to the unsettled debate over what Bush Administration officials called "enhanced interrogation," Andrew McCarthy of National Review revives the case against categorical torture bans. To his credit, he mentions a huge cost imposed by the policy that he favors:
People who want a categorical ban on such tactics constantly avoid addressing the ticking-bomb scenario and similar questions that bring the logic of their position into stark relief: forced to choose, they would prefer the occurrence of a preventable atrocity and the loss of perhaps thousands of lives to interrogation that harms a hair on the head of a culpable terrorist. In turn, people who argue against categorical bans (as I have done) often avoid addressing the inevitability that tactics they endorse for dire circumstances will be applied in less dire circumstances—and that our resistance to a ban, even though highly qualified, could encourage rogue regimes in their more routine use of abusive practices.
This has always been a worthy debate.
This way of framing the torture debate has always been highly suspect, even though many torture apologists still cite the ticking time bomb as a major rationale.
So let's entertain it. The hypothetical is suspect because, unless Hollywood screenwriters start engaging in murderous acts of performance art, no actual terror plot is ever going to involve a time bomb, a code to defuse it, a collaborator in custody who has that code, FBI or CIA agents who know it, and a waterboarding table on hand. The image of the "ticking time-bomb" was carefully chosen to evoke an inevitable catastrophe unfolding on a specific time frame that's already been set in motion but can still be stopped ... but only with knowledge that torture alone will elicit.
This is comic-book stuff.
No one can cite even a single terrorist attack that has been stopped, or could have been stopped, with torture in this manner. Scour all of history and you come up empty. Little wonder that it's always invoked as a hypothetical, not a cautionary tale.Who can prove it won't ever happen?
Maybe Graham Yost will go rogue. Of course, a Secret Service agent on a foreign trip could head for the bathroom and stumble on the room where a foreign leader is about to press a button to nuke us. Should we end the categorical prohibition on Secret Service agents killing foreign leaders without permission, just in case?
McCarthy suggests a parallel between anti-torture commentators who "avoid addressing the ticking-bomb scenario" and "people who argue against categorical bans" who "avoid addressing the inevitability that tactics they endorse for dire circumstances will be applied in less dire circumstances." But the parallel breaks down when one examines the different reasons these scenarios are seldom addressed. People avoid the ticking time bomb because the hypothetical is a debating trap. Those who invoke it wouldn't wager money on the U.S. facing such a situation no matter what odds they were given. They uncomplainingly accept all sorts of risks far more dire than the lack of a ticking-time-bomb exception. There's one reason the hypothetical is part of the discussion: It's unfalsifiable. It's more useful in justifying torture than any reality-based argument.
Now consider those who won't address the fact that "tactics they endorse for dire circumstances will be applied in less dire circumstances." They are avoiding reality. The Bush Administration never faced a ticking time bomb. But it did torture. No historical knowledge is required to know this. You just have to read the news. You'd never know it watching 24, but surveying every known instance of torture in world history, a torture-defused time bomb can't be found. Torture is constantly used in less dire circumstances. That's why Western civilization erected taboos around it that the Bush Administration foolishly tore down.
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Elsewhere in McCarthy's article, in an effort to cast doubt on whether the Bush Administration perpetrated torture, he writes:
As we discussed ad nauseum during the debate over “enhanced interrogation,” there is no question that waterboarding can amount to torture (and, indeed, can result in death) depending on the technique used. Nevertheless, torture—if we are talking about the crime, as opposed to using loose rhetoric about physical or mental abuse—has a legal definition. It requires the infliction of severe pain and suffering by a government official who deliberately and consciously intends to torture his victim. (Title 18, U.S. Code, Sec. 2340 et seq.) Moreover, to qualify as psychological torture, the infliction needs to be “prolonged mental harm” of the kind caused by the infliction or threatened infliction of severe pain, or “the threat of imminent death.”
... Waterboarding the way the CIA executed was highly uncomfortable, but it did not cause severe pain, it was of short duration, and it did not cause fear of imminent death (the detainees were told that they were not going to be killed).
This is unpersuasive for two reasons.