This paper explores the moral and legal complexities of torture through the lens of the "ticking time bomb" scenario—a hypothetical in which torture might save lives. The essay analyzes Alan Dershowitz's controversial argument for judicially sanctioned torture, reviews international definitions and prohibitions on torture, and considers alternative security measures. It examines utilitarian philosophical perspectives (Bentham and Voltaire), the Israeli government's approach to terrorism and torture, and the practical implications of legalizing interrogational torture. The paper concludes that while torture may occur regardless of legal status, formalizing it carries greater moral costs than pursuing alternative security strategies.
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, as well as 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 additional 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 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 or courts.
The definition of torture specifically excludes actions involved in lawful sanctions (such as the death penalty, or accidental injury of a suspect during arrest). With this sole exclusion, torture is defined as those acts by which physical and/or mental suffering or pain were intentionally imposed upon an individual in an effort to obtain information. Factors involved in this definition include prohibition of any such acts by public officials, deliberate intentionality regardless of justifications put forth, and the use of the term "severe" in describing mental and/or physical pain inflicted. Both subjective and objective elements are included, as well as factors such as coercion and punishment. While some suggest that the United Nations' definition of torture may be limited in scope and insufficiently defined, it provides a workable framework for this discussion.
Alan Dershowitz presents his views on torture in an essay entitled "Should the ticking bomb terrorist be tortured?" He begins by describing his teaching method, which involves presenting students with a choice between evils through a story about a railroad engineer. From this, Dershowitz 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 employed to obtain critical information needed to prevent terrorism. While torture is ongoing, it is clandestine and neither commonly known nor politically accepted. Such acts are performed in a manner that provides deniability and avoids accountability from a political perspective. Despite this reality, Dershowitz himself deplores torture and speaks of the ideal alternative where torture would not be used. He repeatedly frames alternatives to torture, even suggesting that when faced with the ticking time-bomb dilemma, one might simply choose to turn away rather than breach moral imperatives.
In his essay, Dershowitz presents perspectives of both contemporary and historical philosophers, including Jeremy Bentham and Voltaire. Dershowitz offers that one approach to torture is to avoid addressing the matter entirely and turn away from such controversial ideation. However, he immediately counters this, arguing it is far better to openly discuss torture and the full gamut of its moral complexity than to become complacent and pretend danger does not exist.
Torture without accountability is unacceptable according to Dershowitz, who feels it also encourages moral hypocrisy and dishonest posturing. Dershowitz proposes that the best alternative enabling the United States to simultaneously protect its population and act strongly as needed, while retaining moral honesty, would be to move towards judicial authorization of torture. With this controversial proposal, he argues that making torture judicially sponsored would result in 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 by nuclear, chemical, and/or biological methods, torture would unequivocally be employed in an attempt to gain information or halt such an event. Given the present state of global terrorism, Dershowitz's thoughts on the topic are particularly interesting. Implicit in his work are questions of individual personal stance and collective societal stance on the moral grounds of torture, with a direct impetus to explore available alternatives when faced with such a quandary: a choice between harming another person and potentially preventing greater harm to many people.
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 identification, increased surveillance, and additional security checkpoints. Many of these suggestions have been implemented in the United States as part of the Patriot Act, which was initiated under President George W. Bush and subsequently continued by President Barack Obama. The intent of such means is to provide early evidence of terrorist plots in advance, before the "last chance" scenario of the ticking time bomb. If a variety of different methods are used to enhance national security, the perceived necessity to obtain information through coercion of suspected terrorists may decrease, and more information may lead to alternatives that do not require torture.
Furthermore, it is unclear whether truth would actually be obtained if torture were used. History provides cautionary examples, such as torture used during witch trials in the United States and Great Britain. It is possible that individuals being tortured would provide false information simply to get the torture to cease. Some have suggested that the ability to use torture might result in decreased law-enforcement investigations, as the presence of a "source" might actually deter further investigation. If this were the case, it might become more difficult to obtain information about potential threats beyond those known to individuals being tortured. Perhaps spreading the search to a wider variety of information sources could increase leads to preventable terrorist activity and eliminate the possibility of a ticking time bomb situation from occurring.
An important consideration for each of us is to evaluate whether such means are not in themselves likely to result in a loss of personal and individual rights, ranging from privacy to liberty to human dignity. Essentially, the requisite action is for each individual and society as a whole to determine what price, in terms of civil liberties, we are willing to pay for national security. Dershowitz proposes that the best solution involves judicially sanctioned torture warrants, which would subject the practice to public accountability and oversight rather than clandestine operations.
However, despite Dershowitz's eloquence, it is not necessarily the case that if torture becomes judicially sanctioned, it will consequently be effective in decreasing torture. If his proposal is not accepted, it is equally unclear whether torture will stop given the global crisis of terrorism and the preeminent drive to protect the innocent. For Dershowitz, judicially sanctioned torture to support national security is a lesser evil than secret torture. However, perhaps there are alternatives to sanctioning torture—means by which national security can be protected without requiring us to sacrifice human dignity.
As described in the scholarly literature, the 9/11 tragedy had immense consequences for the nation and for each individual personally. Among these changes was a 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 nationality of individuals involved; they further stated that torture was against globally accepted norms of human rights.
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 opposed to such means and has shown evidence of favoring it, particularly in cases that seem to relate to the hypothetical ticking time bomb scenario. Legal experts now write essays proposing reasons why torture is acceptable. Unfortunately, what was once purely hypothetical discussion is now perhaps all too likely a reality that must be considered.
Safire argues 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, 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. The 9/11 tragedy has revived discussions about the moral justifications for torture by a "just government" and brought particular focus to the ticking time bomb case.
According to scholarly analysis, the "ticking time bomb" first appears in Les Centurions, a 1960s novel by Jean Lartéguy. In this work, the story is hypothetical but includes a number of pertinent assumptions: torture is less harmful than potential bomb damage; torture is likely to yield information; strong legal evidence indicates the terrorist has information sufficient for conviction; there is no other way to obtain an answer; rapid action is likely to save lives; and failure to act will result in many deaths equivalent or worse than the projected torture.
Scholars note 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 stands in contrast to a more common interpretation, that the ticking time bomb justifies torture. From the perspective of the 9/11 horrors, many would opt for torture in the ticking bomb case and justify it. However, it has been argued that the single example of the ticking bomb case is insufficient as a base from which to argue for all torture.
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—precisely the point made by Dershowitz in his runaway train story to his classes. In this scenario, an engineer driving a train must decide whether to swerve and kill one person on an alternate track to save five people on the main track.
The perspective of Jeremy Bentham, a foundational utilitarian thinker, requires an individual who holds moral values to base those values on rational argument and to define these values with specification of circumstances under which the values might be overridden. 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. For Bentham, it was obvious and logical that the good of the many outweighed cruelty to one person being tortured to gain information that would save many.
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 from the perspective of utilitarian philosophy, torture is the lesser of two evils and provides for the highest good for the many. However, some philosophers find that a choice between evils is not sufficient to justify torture. Dershowitz cites Voltaire (born François-Marie Arouet), saying that Voltaire's views on torture were "hopelessly confused," indicating the complexity of philosophical positions on the subject.
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 nature of Israel as a "law-abiding state" while protecting its citizens. These were (1) to essentially take no legal action, permitting the Israeli security force to operate outside the realm of law; (2) to take a moral stance against torture but ignore the fact that it may be ongoing; and (3) to encode the necessities of the state and 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 inviting other types of abuses. He personally stated that there was a "fourth way": that of refusing to torture and letting events unfold as they will. This fourth road represents a purist stance that rejects torture entirely, even when facing the ticking time bomb scenario.
There are significant concerns about the manner in which the Landau Commission addressed this issue. For the 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 Israeli service was itself a choice of a "lawless" legal doctrine.
The results of the Landau Commission were contradictory. While exempting Israeli security from criminal responsibility, there remained a dichotomy between ethical precepts including the duty to protect others and oneself, and those ethical precepts where even criminal law has defined boundaries concerning right treatment of individuals. When "necessity" is invoked, the law itself refuses to act, allowing necessity to be defined situationally and become dependent upon the inherent morality of the individual defining necessity. This is problematic because necessity will vary between individuals and their ultimate decision concerning whether protection of innocent lives is more important than harming one terrorist.
The defense of necessity could readily be used by Palestinian rock throwers protecting their homes or honor. This could become a question for political courts to decide upon, with conflicting claims of necessity. The precise legal meaning of necessity is wholly unclear and does not seem appropriate for a policy decision for a nation on a topic of such importance as torture.
Remembering that the ticking-bomb argument is widely used and approached from many different perspectives, it appears that often the argument results in a choice for torture given a hypothetical likelihood of saving many lives. In contrast, Dershowitz appears to defend torture, yet the crux of his argument is that only in honest recognition of this act in its horrors can we potentially decrease the use of torture in actuality. Dershowitz is unequivocal in stating that he finds torture to be morally repugnant. Yet despite this repugnance, he claims that given the potential political justification of torture in some cases, it is imperative for the United States, as individuals and as a citizenry, to make a stand on the issue, discuss it openly, and ultimately provide judicial oversight of torture as the only reasonable alternative.
If torture were allowed on the condition of judicial review, this would essentially legalize torture in specific cases. However, making some cases of torture legal may not address the real issue—which is the likelihood that torture is ongoing, whether legal or not. There are those who say that torture will occur regardless of what stance society takes, and that the act of discussion, like the act of judicial sanctioning of torture in some cases, will have no effect on whether torture actually occurs. Simply because judicial review is "required" prior to torture may not mean that those who feel torture is justified will suddenly stop and wait for a judge's permission.
Today's political realities regarding terrorists make for some unpleasant circumstances. The government of the United Kingdom acted in 2005 to remove restraints on suspected terrorists within the UK and instead released these suspects for deportation. The countries to which the suspected terrorists were being deported, however, were those in which the reality of torture was quite probable. Article 3 of the European Convention on Human Rights is unequivocal: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." The European Court of Human Rights has stated that this Article further prohibits a government from knowingly using extradition to send an individual to a location that permits torture. Thus, it can be claimed that the UK government knowingly subjected the suspected terrorists to torture through their deportation policy.
It would seem obvious that the procedure of extraditing suspected terrorists is a practice that only shifts the act of torture from the conscience of a single country, while potentially strengthening torture in another. As well, extraditing suspected terrorists to a locale where they are likely to be tortured is directly against the accepted human rights presented by international bodies such as the United Nations. For all of us, the threat of unexpected and massive loss of life as a consequence of terrorist activity has become a reality. Regardless, legalizing torture is unlikely to provide benefits and may carry greater costs in terms of moral equivalency.
Terrorism is not deterred by the use of torture, as has become evident from the words and actions of many in Al Qaeda and ISIS today; terrorism may instead be only strengthened as an attitude of implacable hatred and justification for terrorist acts within these and other terrorist organizations. Perhaps it is only fair to state that if we should make the decision to completely oppose torture, we must be aware that such a personal stance may not be devoid of negative consequences. In the words of American Founding Father Benjamin Franklin, "Those who would give up essential liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."
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