Torture and the Ticking Time-Bomb the Definition

Torture and the Ticking Time-Bomb

The Definition of Torture

In 1984, the United Nations General Assembly produced an advisory measure known as the United Nations Convention Against Torture. This document specifically addressed torture from the perspective of governments and states, while it also focuses on the use of torture by any individual acting in an official capacity for said state or government. The document also addressed other forms of 'cruel and inhumane treatment'. Two other aspects of this convention are important: any government or state is forbidden to extradite individuals to a nation where it is reasonably possible that they might be tortured, and governments or states are required to act in an effective manner to halt and/or block the use of torture within their country. Evidence obtained from the use of torture is also forbidden from being used in any legal proceedings and/or courts.

The definition of torture specifically excludes actions involved in lawful sanctions (presumably such as the death penalty, but also perhaps the 'accidental injury' of a suspect during the actions leading up to his arrest). With this sole exclusion, torture was defined as being those acts by which physical and/or mental suffering and/or pain were intentionally imposed upon an individual as a part of an effort to obtain information (Ticking Time Bomb and Torture, n.d.). Factors involved in this definition include prohibition of any such acts by any public official, the deliberate intentionality of the act, regardless of the reasons and/or justifications put forth for its necessity, and the use of the word 'severe' in terms of mental and/or physical pain being inflicted. Both subjective and objective elements are thus included, as well as factors such as coercion and punishment (Wattad M., 2008-2009). While there are those who suggest that the United Nations' definition of torture may be limited in scope, and insufficiently defined, it can be used for the purposes of the discussion herein.

Section 1: Dershowitz on Torture

Alan Dershowitz (in Chapter15 pp.1 89-214, Darmer, ed. ref needed) eloquently presents his views on torture in an essay entitled "Should the ticking bomb terrorist be tortured?" He begins by describing how his teaching method at Harvard involves presenting students with a choice between evils (a story about a railroad engineer, vide infra), and from there takes the reader through his personal step-by-step process of thinking about torture. Dershowitz states that his teaching experience in Israel had a significant impact upon his views on torture, as this topic was of considerable importance at the time, and remains so to the present day.

Dershowitz comments that, even in the United States, the use of non-lethal torture is presently in use in order to obtain critical information needed to prevent terrorism. While torture is on-going, it is clandestine and neither commonly known, nor politically (or commonly) accepted; indeed, such acts are performed in a manner that provides deniability as necessary, and avoids accountability from a political perspective. Dershowitz himself deplores torture, and speaks of the ideal alternative where torture would not be used. He repeatedly frames alternatives to torture, even going so far as to suggest that when faced with the 'ticking time-bomb' dilemma, one might simply choose to turn away, rather than breach a moral imperative. In his essay, Dershowitz presents the perspectives of present-day as well as those of less modern philosophers, including both Jeremy Bentham and Voltaire. Indeed, Dershowitz offers a fifth road approach to the topic of torture, which consists of simply not even addressing the matter, and turning away from such a controversial and confusing ideation. However, he immediately counters this, saying it is far better to openly discuss torture, and the full gamut of its moral complexity, than to become the proverbial ostrich, hiding our heads in the sand and pretending that danger doesn't actually exist.

Torture without accountability is unacceptable according to Dershowitz, who feels that it also encourages moral hypocrisy and dishonest posturing. Dershowitz proposes that the best alternative that enables the United States to simultaneously protect the populace and act strongly as needed, yet retain at least the crumbs of moral superiority, would be to move towards judicial authorization of torture. With this controversial proposal, he is of the opinion that at the least, making torture become judicially sponsored, would have the net result of actual moral honesty instead of hypocritical pretense.

Dershowitz states that he is fully convinced that, were there a serious and imminent threat of mass-casualty terrorism, whether by nuclear, chemical, and/or biological methods, torture would unequivocally be employed in an attempt to gain information or to halt such an event (Dershowitz, 2002). Given the present state of affairs politically, and the fact that terrorism has, if anything, become more present globally, Dershowitz' thoughts on the topic are very interesting. Implicit in Dershowitz' work are questions of individual personal stance, as well as the collective societal stance, on the moral grounds of torture, and a direct impetus to explore the available alternatives when faced with such a quandary: a choice between harming another person, and potentially preventing a greater harm from happening to many people. Indeed, this precise question is posed by Dershowitz himself in his classes as the classic railroad conundrum. With respect to torture, Dershowitz states that he has deliberately tried to begin a debate on torture as a policy question for a democracy to address, specifically that debate is an important aspect when there are situations that lack a simple, 'good' resolution, but instead require the far more difficult 'choice of evil' decisions (Dershowitz, n.d.).

As described by Dershowitz, many authors and philosophers have discussed the 'choice of evil' scenario, of which 'the ticking bomb' is only the latest and most relevant. Assume a terrorist who has been captured, and is known to have information about an imminently impending attack with a weapon of mass destruction that could hypothetically maim and/or kill thousands. The moral dilemma then concerns whether or not torture, to gain potentially life-saving information from said terrorist is justifiable.

Dershowitz goes on to describe his trip to Israel, where he learned that torture as an active method to halt terrorism, or find out about impending terrorist activities, had moved beyond hypothetical into actuality. While Dershowitz himself advocated a 'purist' position - let the bomb go off - he found that Israelis were not willing to do so, even in conversation. Again, Dershowitz discusses his proposed alternative - if torture is going to be used, then make it 'legal' - require a warrant and advanced judicial approval. This idea from Dershowitz, to require judicial approval for torture, apparently engendered considerable attention and criticism from the media, among others. In his opinion, the essence of the idea for judicially approved torture was to arrange for accountability that was public, instead of clandestine actions of torture. For Dershowitz, legally sanctioned torture was at least a step towards honor and a maximization of civil liberties (Dershowitz A.M., 2002).

Following what is commonly called 9-11, the terrorist attacks of September 11, 2001, the mood, in a strictly emotional sense, as well as the intellectual perspective of the United States' populace towards issues such as torture were both radically altered. Indeed, agents representing the nation's highest law enforcement agency, the Federal Bureau of Investigation, reportedly stated that torture might be deemed necessary to prevent further terrorism such as 9-11 (Pincus, 2001). Following the horrors of Nazi Germany, many Americans, even those young enough not to have lived during that period, viewed torture as an inhumane act done by others, but never by Americans. Thus, the actuality of torture occurring on American soil, being done by Americans was shocking to say the least, and yet simultaneously, the mixed emotions arising from the 9-11 event had seriously altered many opinions as to what was 'right' when it came to terrorists, and gaining potentially life-saving information.

Dershowitz wrote a book about the topic "Why terrorism works: Understanding the Threat, Responding to the Challenge" (Dershowitz, 2002). In part, the focus of his book was to address ways in which to strike a balance between the highest possible retention of civil liberties simultaneously with working proactively to ensure national security. As discussed by Sung (2003), Dershowitz seeks to open a dialogue concerning the diverse challenges, both legal and moral, facing a democratic society that must simultaneously uphold our chosen values of personal privacy and liberty yet also act in a manner that will deter terrorism effectively. Dershowitz discusses means to prevent, or at least slow, terrorism by actions on both the micro- and macro- scales. The macro-scale would involve understanding and analysis of the various types of terrorism; the micro-scale would involve more specific and more situational actions. For example, Dershowitz considers the possibility that a particular subset of terrorists may be relatively rational, and are simply acting in a terrorist manner as a means to garner attention for their particular political cause. In such a 'micro' case, attention is precisely what should not be provided to the terrorist. Dershowitz viewed his own work as opening an all-important collective dialogue about torture, about the moral repugnancy we feel, and should feel, towards torturing a fellow human, and about the recognition that there might indeed be a time and place in which torture was, nonetheless requisite 'for the greater good'. In acting to punish terrorists, and to place national security as a priority, society is acting collectively. However, this act should not be one that is hidden behind closed doors, but one that is openly debated and discussed, as the example of a judicially sanctioned torture implies. Finally, we must work in such a manner that the price of protecting lives is never as high as the loss of liberty, given that our personal liberties are an essential part of our society (Sung, 2003).

Dershowitz had an answer to the moral quandary presented by torture: to permit non-lethal torture if it were judicially sanctioned, and if it were shown to be necessary in order to gain precise information that would result in saving lives. Obviously such a proposal was, and likely is, highly controversial. Again, Dershowitz resorts to the 'ticking bomb' scenario, where thousands of lives are in imminent danger and the only source of information is a terrorist who refuses to talk. With such a situation, the question becomes should torture be employed in order to save lives, or is torture so morally repugnant that it is unwarranted regardless of the circumstances? Under such a scenario, Dershowitz proposes that a warrant permitting torture should be provided by a judge, thus rendering the torture 'legally sanctioned'. Dershowitz repeatedly makes the point that he, himself, is opposed to torture 'in general', however there may be circumstances in which torture could be reasonably 'excused' or permissible in terms of potential lives that would be saved by such a repugnant action. The use of a judicially sanctioned mandate for torture is thus Dershowitz' solution in a 'worst-case' scenario.

However, despite Dershowitz' eloquence, it is not necessarily the case that if torture becomes judicially sanctioned, this fact will consequently be effective in decreasing torture. However, if his proposal is not accepted, it is equally unclear whether torture will stop given the global crisis of terrorism, and the pre-eminent drive to protect the innocent. Dershowitz is particular focused on a particular moral question for each individual, however if we look further beyond, it appears more likely that torture will continue (Sung, 2003). As formulated by Dershowitz, torture is going to occur, regardless, and may even be necessary for national security. Under those conditions, then, it becomes imperative to choose between a judicially sanctioned torture or a secret one. For Dershowitz, judicially sanctioned torture, to support national security, is a lesser evil than secret torture. However, perhaps there are yet alternatives to sanctioning torture, means by which national security can be protected that do not require us to sacrifice human dignity.

As Dershowitz points out, there are a variety of different means by which national security can be enhanced: improvement of intelligence, restricting immigration, issuance of national ID, increased surveillance, and more checkpoints for security. Many of these suggestions, and more, have been implemented in the United States as a part of what is called 'The Patriot Act', which was initiated under the leadership of President G.W. Bush, and has subsequently been signed and continued, or re-employed by President Barack Obama. The intent of such means to strengthen national security is to provide early evidence of plots by terrorists in advance, and before the 'last chance' scenario of the ticking time bomb (Sung, 2003). If we use a variety of different methods such as these to enhance our national security, it is possible that the necessity to obtain information by coercement of individuals suspected to be terrorists will decrease. More information may lead to alternatives that do not have the potential to require torture.

Furthermore, it is unclear whether the truth would actually be told if torture were used, as one can see from reading histories of torture used on persons such as during 'witch trials' in the United States or Great Britain. It is possible that individuals being tortured would provide false information just to get the torture to cease. Some have suggested that the ability to use torture might result in a decrease in law-enforcement investigations, as the presence of a 'source' might actually deter further investigation. If this were the case, it might actually become more difficult to obtain actual information about other potential threats beyond those known to the individual(s) being tortured for information. Perhaps spreading the search to wider variety of information sources could increase the leads to preventable terrorist activity, and eliminate the possibility of a 'ticking time bomb' situation from occurring. Were more information available, the perceived 'need' to torture might be eliminated (Sung, 2003).

An important consideration for each of us is to evaluate whether or not such means are not in and of themselves likely to result in a loss of personal and individual rights, ranging from privacy to liberty to our very dignity as humans. Essentially, the requisite action is for each of us individually, and society as a whole, to make the determination as to what price, in terms of civil liberties, we are willing to pay for national security. The price for national security should not be so high as to require the loss of civil liberty. Given the likelihood that some action is required, perhaps that action should be one focused on finding means to gain information that have less likelihood to impact and/or infringe upon civil liberties, rather than to consider a process of judicial sanctioning of torture. The sanctioning of torture must be seen to be a loss of human dignity. According to Sung (2003), were we, as a society, to be seriously called upon to choose between loss of personal liberties or loss of human dignity, then the latter must be preserved at all costs, including at the cost of a sacrifice and/or risk of liberty.

Section 2: The Ticking Time-bomb Hypothesis

As described by Strauss (2003-2004), the 9-11 tragedy had immense consequences for our nation and for each of us personally. Among these changes, and beyond the emotional toll, was the new question about torture, and appropriate actions to be taken to protect the populace. In 1980, the United States Court of Appeals ruled against deliberate torture by any official government representative, irrespective of the issue of nationality of individuals involved; they further stated that torture was against the globally accepted norms of human rights (Court of Appeals, 1980).

Immediately following the 9-11 attacks, a university class on ethics presented students with a quiz relating to treatment of suspected terrorists. The students were surprisingly pro-torture and even pro-execution, rather than the more liberal attitudes that might have been expected. The American attitude towards torture has increasingly become less against the use of such means and has shown evidence of favoring it, particularly in the cases in real life that seem to relate to the hypothetical ticking time bomb scenario. Legal experts now write essays proposing reasons as to why torture is acceptable. Unfortunately, where once the ticking time bomb discussion was purely hypothetical, it is now perhaps all too likely a reality that must be considered. Perhaps this is precisely the reason that Dershowitz initially proposed his controversial legal sanctioning of torture idea (Ticking Time Bomb and Torture, n.d.).

The Ticking Time Bomb

Safire (2001) states that a civilized society should not include the barbaric practice of torture, particularly given a global consensus, as represented by international law, that torture should wholly be illegal. Indeed, as argued by Dershowitz, torture has not been a common topic of civilized nations for quite some time, and was not a contemporary moral topic but rather a historical one (Dershowitz, 2002). It can be seen that the 9-11 tragedy has revived discussions about the moral justifications for torture by a 'just government', and brought particular focus to the case of the ticking time bomb (Ticking Time Bomb and Torture, n.d.).

According to Mayer (2007), the 'ticking time bomb' first appears in Les Centurions, a 60's novel by Laretuy. In this work the story is hypothetical, but includes a number of pertinent 'reasonable' assumptions: (1) Torture is less harmful than the potential bomb damage; (2) torture is likely to yield information; (3) there is strong legal evidence indicating the terrorist has information, sufficient to result in conviction; (4) there is no other way to get an answer; (5) rapid action is likely to save lives; (6) failure to act will result in many deaths, equivalent or worse than the projected torture (Twining W., 1973). Kleining (2005) is of the opinion that a precise understanding and evaluation of the ticking time bomb example can be seen as either setting an example for further use of torture, or to the contrary, prohibiting torture completely. This is in contrast to a more common interpretation, that the ticking time bomb rather justifies torture. From the perspective of the 9-11 horrors, many would opt for torture in the ticking bomb case, and justify it. Allhoff (2005) indicates that the single example of the ticking bomb case is insufficient as a base from which to argue for all torture.

Section 3: Dershowitz on Jeremy Bentham and on Voltaire

From the perspective of normative ethics, torture should be considered with an approach that is utilitarian, considering the greatest happiness of the larger population as the measure of what is 'right'. The debate about torture is thus viewed as a choice between two evils, again precisely the point made by Dershowitz in his runaway train story to his classes. The perspective of Bentham requires an individual who holds 'moral values' to base those values on rational argument, and to define these values complete with specification of those circumstances under which the values might be abrogated. Bentham was an early advocate of the utilitarian approach to many societal issues, including torture. He considered that the use of torture on a single individual to obtain information would be permitted if such an action would save the lives of others who were in harm or potentially at risk. Furthermore, for Bentham, it was obvious and logical that the good of the many outweighed the action of cruelty to one person being tortured to gain information that would save many.

Alternatively, it is possible that the engineer driving the train may simply not make a conscious decision, a choice between evils, but operate unthinkingly swerving the train before he notices the man lying on the tracks. In the absence of a conscious choice, the engineer would not have 'chosen' evil, unless to say he was already derelict in his duty by not being aware to his massive dilemma. Indeed, it is possible that the engineer would not be held criminally liable in such a case. Dershowitz moves from the train example to the example of a terrorist and the 'ticking bomb'. If one approaches the case of the ticking bomb, then from the perspective of the utilitarian philosophy, torture is the lesser of two evils, and as well provides for the highest good for the many. Mclaughlan (n.d.) finds that a choice between evils is not sufficient to justify torture It is interesting to note that Dershowitz cites Voltaire (born Francois-Marie Arouet), saying that Voltaire's views on torture were 'hopelessly confused'.

Section 4: The Israeli Government Approach to the Ticking Time-bomb and The 'Fourth Road'

In 1987, the Israeli government authorized the Landau Commission to discuss terrorism and torture. This commission found three approaches by which one might simultaneously maintain the identity and very nature of Israel as a 'law-abiding state' yet protects the citizens of such state. These were (1) to essentially take no legal action, permitting the Israeli security force to be outside the realm of law; (2) to take a moral stance against use of torture but ignore the fact that it may be ongoing; and (3) to encode the necessities of the state, and of Israeli security into the law with respect to 'Hostile Terrorist Activity'. Dershowitz questions the extent to which any legal system could enclose the actions of Israeli security without itself inviting other types of abuses (Dershowitz, n.d.). Furthermore, he personally stated that there was a 'fourth way', which is that of refusing to torture, and letting events unfold as they will.

There are clearly concerns about the manner in which the Landau commission addressed this issue. For the Landau commission, the rationale for activities by the Israeli service was 'necessity', which can be seen to imply a 'state of nature'. In such a state, when an individual must choose between preventing harm to others or breaking the law, he is authorized to act beyond the law. Dershowitz states that the Landau commission's choice of 'necessity' as a legal doctrine supporting the ongoing activities of the Israel service was itself a choice of a 'lawless' legal doctrine (Dershowitz, n.d.).