GLOBAL DIALOGUE Volume 12 ● Number 1 ● Winter/Spring 2010—Working the Dark Side

Deconstructing Ticking-Bomb Arguments


CATHERINE MCDONALD

Catherine McDonald is a philosopher based in Melbourne, Australia, who specialises in the field of ethics.


In 2005, the front page of Melbourne’s main metropolitan broadsheet newspaper carried an article defending the use of torture.1 It was not the first such article to appear in the mainstream media of the world, but it was the first such article in Australia. Mirko Bagaric and Julie Clarke’s argument was ludicrous, but suddenly the concept of “justifiable” torture was appearing everywhere. At the heart of their article was a (now well-known) example, that of the “ticking bomb”. The same example has been used as the basis of Hollywood movies and innumerable defences of torture.

 

Suppose a bomb (possibly a nuclear bomb) has been planted somewhere in a city and is about to go off. If it goes off it will inevitably kill many people. Suppose we have the bomber in custody, but the bomber refuses to say where the bomb is. We have no way of either locating the bomb or safely removing people from its vicinity. Should we torture the bomber to locate the bomb? Are we morally justified in doing so?

 

These are the bare bones of the scenario, variations of which have circulated in undergraduate philosophy courses for many decades. It is one version of a number of problems known collectively in moral philosophy as “emergency-case scenarios”. Other variants often concern child-kidnappers, where the kidnapper is in custody but will not reveal the child’s location. All of these cases have in common the following conditions: (a) the information required is time-sensitive; (b) we have in custody the person who has this information; (c) the person who has the information will not voluntarily provide us with it; and (d) we have no other way of obtaining the information than torture.

Hypothetical, but Pernicious

Nominally, such hypothetical examples are designed to evaluate the question of whether or not it is ever permissible to do what would otherwise be morally impermissible. That is, how absolute are our moral values? The background assumption is that the prohibition against torture is an absolute value par excellence. As an exercise in first-year philosophy classes, the emergency-case scenario arguably serves some purpose, although this, too, is debated within the discipline. Outside the academy, however, such arguments are just tendentious. In reality, all pro-torture arguments based upon the ticking-bomb example are logically flawed and morally implausible.

 

The ticking-bomb argument has been utilised seriously in support of torture chiefly since the 2001 attack on the World Trade Center and the subsequent invasion of Iraq. It is perhaps not coincidental, then, that it is largely American, Australian and British theorists who have publicly promoted this argument as a justification for the use of torture. Indeed, the argument has become almost ubiquitous in the mainstream media of these countries as the default pro-torture argument. Not only are torture proponents seeking a rationalisation for political expediency, but they are also taking advantage of the fact that the audience they address has, for the most part, no experience of the reality of torture. The irredeemable defects of the argument are therefore often overlooked.

 

Pro-torture arguments arising from the ticking-bomb case are based on the principle of consequentialism. That is, they purport to justify torture under the principle that we are morally justified in doing whatever produces the best consequences or outcome. “Best” in this context is understood to be whatever produces the greatest amount of utility or some other good or satisfies the greatest number of interests.

 

Stripped of its specific details, the argument goes something like this: In circumstances where lives are at stake and we have no other means at our disposal, we may torture a person if doing so produces information that would save lives. Torture is an effective means of gaining information. The loss of benefit to the individual tortured is less than the loss of benefit to those who will die if we do not torture. Therefore, we are morally justified in using torture. Torture in these circumstances produces a net gain in benefit and therefore produces the “best” outcome.

Presuppositions

Such arguments rely upon a number of sub-arguments that are subsumed within the contrived details of the scenario itself. The implications of these are that we know that the person we have in custody is responsible for planting the bomb (or kidnapping the child); that the person knows where the bomb (or child) is located; and that torture is an effective method of gaining information within a short timeframe. These assumptions are conceptual conceits rarely validated in the real world.

 

In Hollywood versions of the ticking-bomb scenario, the identity of the guilty person is always certain, but this is mere fantasy. In 2005, Jean Charles de Menezes was shot dead by British security forces who knew that he was a suicide bomber about to blow up a train in the London underground. So certain were they of his guilt, they shot him in the head seven times. In fact, he was an entirely innocent young man on his way to work. Even with the best intentions, we cannot avoid error. If we allow the torture of the “guilty” we will sometimes also torture the innocent. This is simply an unavoidable consequence of being human. While many people find the prospect of torturing innocent people repulsive, some proponents of torture (Bagaric and Clarke in particular) are prepared to accept this outcome as simply the price we pay for pursuing the greater good.

 

For the moment, however, it is sufficient to establish that the subjective certainty of law-enforcement agents is not good evidence of guilt. The history of legal process (at least in the English tradition) has developed largely in response to the limitations of summary justice. In the emergency-case scenario, where we are faced with time constraints and where emotions are likely to be running high, we have even less reason to rely upon such summary judgements of guilt. Mr de Menezes’s death is testament to that.

 

The substantive element of the ticking-bomb argument depends upon the assumption that in fact torture is an effective means of gaining information, and that gaining information from torture does in fact produce a net benefit. Pro-torture arguments get off the ground only if they can establish the reasonableness of these assumptions. It is surprising, then, that torture proponents make no serious attempt to establish the credibility of these propositions. Instead, they rely on hearsay and media reports.

 

America’s main torture proponent, Harvard law professor Alan Dershowitz, has advocated the introduction of “torture warrants” to legalise torture in extreme cases where many lives are at risk. His argument cites a German kidnap case where police gained permission to use physical force on the suspect. But this is not an instance of torture, since, as Dershowitz acknowledges, the kidnapper was never tortured—he “broke down before any torture was actually administered”.2 Dershowitz also cites a media report of a case in the Philippines where the victim, having been tortured for more than a month, reportedly provided evidence of plans for a bombing campaign. Clearly, this is not an emergency-case scenario, and anyway, there is reason to believe that the details of this story are not as Dershowitz describes them—notably, that the Manila police got all the actionable intelligence from the suspect’s computer in the first few minutes, prior to torturing him.3

 

Another example favoured by proponents of torture is that of Khalid Sheikh Mohammed, who, after many months of torture at Guantanamo Bay confessed to involvement in a variety of bomb plots, some of which resulted in a bombing and some of which were foiled. The confessions were at best of dubious veracity and some were certainly false. In any case, if it takes months to torture a victim into confession, then torture is clearly not an option in the ticking-bomb scenario. Equally, if it takes months to torture a confession from a victim, we are also entitled to ask why torture is chosen rather than some other interrogation technique.

The Best Method?

The ticking-bomb scenario relies upon ignorance in proposing that torture is an effective interrogation technique. It might appear intuitively obvious that torture is so terrible that everyone will confess under torture and will do so almost immediately. However, the reality is much more complex.

 

It is indeed the case that the innocent will confess to absolutely anything they think their interrogator wants to hear, including, as some wits have observed, consorting with the devil—a common torture-induced confession during the Middle Ages. However, such people do not confess simply because torture is terrible but because, being innocent, they lack any psychological defence that would give their suffering meaning. This is not the case with those who have strong commitments of ideology or loyalty. Indeed, the greater a person’s ideological commitment, the less likely he or she is to confess genuine information. In 1581, the Elizabethan Catholic, Alexander Briant, was tortured on the rack for the location of a printing press used for publishing “treasonous” material. He didn’t confess, and ultimately was executed. Equally, while it is not surprising that some civilian members of the French Resistance confessed their contacts under torture, what is surprising is that so many did not. Contrary to intuition, guilty people do not always confess under torture.

 

Nonetheless, it might be argued that if there is even a slight chance that the guilty might confess under torture, then the emergency nature of the ticking-bomb scenario provides us with a moral justification to use it. However, this would be the case only if there were no other equally (or more) effective method of interrogation, and there is simply no evidence that this is true. On the contrary, the overwhelming conclusion of empirical research into the use of torture is that it is not an effective means of gaining information. Darius Rejali’s recent extensive analysis, Torture and Democracy, concludes that torture is less effective than standard police interrogation methods and often even less effective “than flipping coins or shooting randomly into crowds”.4 According to Rejali, “stories of torture working are grounded in movies rather than history”.5 Perhaps this helps explain why the movie cultures of the United States, Britain and Australia have been so tempted by the notion of “justifiable” torture.

 

Proponents of the ticking-bomb scenario simply fail to make the case that torture is an effective interrogation technique. Since the substantive premiss of their argument fails, the argument as a whole fails. However, this is not the end of the defects in their argument.

The Consequentialist Calculus

Leaving aside the false premiss, if we accept for the sake of argument that torture reliably produces truthful information, then even so, the ticking-bomb thesis will work only if in fact torture generates a net benefit. Here, the torture proponents rely upon an “immediate interest” account of benefit. We are invited to consider only the immediate interests of the bomber and the victims of the bomb. The net benefit may seem obvious in this case. We simply count up the number of lives on each side of the equation. Although this interpretation of the interests at stake is tempting, it is logically implausible.

 

Consider the following logically equivalent case. Suppose there are a number of people who very urgently require transplant organs. If we kill one healthy person, we can harvest his or her organs and save several lives. If we simply count up the number of lives at stake on each side of the equation, we appear to be justified in killing healthy individuals to harvest their organs. This action would generate a net benefit in terms of the immediate interests involved. While many people have been tempted by the ticking-bomb case, few are tempted by the organ-harvesting case. Simply counting the lives that are immediately affected is not a plausible moral position.

 

In short, the torture proponents wield a principle they do not really understand. The principle of consequentialism operates over reasonably foreseeable consequences rather than merely immediate interests when measuring benefits against losses. In the case of the organ-harvesting, there are foreseeable, adverse consequences. Equally, the foreseeable adverse consequences of torture are so great that they overwhelm any benefit that could be gained from it.

 

The scenario in fact requires us to measure (a) the evil caused by the murder of bomb victims, against (b) the corruption of key social institutions, including the practice of law, policing and medicine; the evil of mistakenly torturing people who are innocent; the moral ruination of torturers; the probability that torture will generate still further bombings and the number of lives likely to be lost in such bombings; the corruption of international laws and treaties; and so on and so on. While the loss of benefit to the immediate bomb victims is very great, there is only a (remote) possibility that torture will prevent this loss of benefit. Conversely, the adverse consequences of using torture are also very great and are also widespread, long-lasting and (unlike the supposed benefits of torture) reasonably predictable. We need consider only the recent history of torture in military contexts to see that this is so.

 

The most commonly cited modern example in the literature is the French experience in Algeria. The use of torture by the French against the insurgency in Algeria (1954−62) changed a situation that was, arguably, militarily winnable into a complete defeat for the French. The use of torture undermined the morale and the chain of command of the French Army. It undermined civilian support for the armed forces and the French government and it galvanised the insurgency into a highly organised resistance, whereas previously it had been scattered and poorly organised.

 

Less commonly cited, but perhaps more pertinent, is the example of the Vietnam War. Viet Cong prisoners were routinely tortured by members of the South Vietnamese army and their American allies. Again, the historical evidence is that the use of torture was strategically disastrous, for much the same reasons as in Algeria. Many Viet Cong prisoners were tortured to death without providing any information, and the knowledge that prisoners were being tortured eroded US public support for the South’s cause.

 

More recently, images of torture from the US-run Abu Ghraib jail in Baghdad have become recruitment posters for Arab militants from all over the world to join the fight against “Western imperialism”. The abuse of prisoners in this case, as in others, has undermined the chain of command in the US Army and the morale of ordinary soldiers—who may now wonder how their behaviour differs from that of the regime they replaced.

 

Former US vice-president Dick Cheney may assert (without evidence) that torture saved American lives, but he fails to acknowledge the increased danger to which such tactics have exposed US citizens (not to mention citizens of other countries). Professional soldiers (as distinct from amateurs—conscripts and politicians) are rarely in favour of torture. Hence, the commitment of most professional armies to the Geneva Convention against the use of torture and the substantial body of military theory that counsels against its use.

 

In civilian contexts, the adverse consequences are equally obvious. The Guildford Four confessed under police torture in the mid-1970s to being IRA bombers. Their only actual crime was to be poor, Irish, and in the wrong place at the wrong time. Not only did torture ruin their lives and those of their families—the four innocent people spent fourteen years in jail—but the reputation of the English legal system has arguably yet to recover from the scandal. The convictions of the four were quashed in 1989, and they were released. The perpetrator of the Guildford bombing has never been prosecuted for the crime.

 

Bizarrely, Bagaric and Clarke cite the police torture of thieves in India as an example of the effectiveness of torture (although this is clearly not an emergency case). What they fail to mention is the poor standard of policing in India and the low regard in which law enforcement is held there. Occasionally retrieving stolen property hardly compensates for the corrosion of a population’s belief in the legal system.

 

There is a great deal of scholarly research into torture in the real world. It shows that torture is an effective means of intimidating civilian populations, that police forces that resort to torture rarely develop effective investigatory skills, and that the pool of victims tends to grow larger over time. That is, more people become likely to be subjected to torture in more diverse circumstances. There is, however, no evidence that torture reduces violence, criminality or terrorist activity, or that it wins wars. Thus, even if torture were an effective means of gathering reliable information, the proponents of torture cannot make the case in the ticking-bomb argument that torture produces a greater gain. The second premiss of the argument fails.

A Tendency to Proliferate

Finally, torture proponents insist that they are not in favour of the widespread use of torture, but seek to justify it only in “emergency” situations. This claim is risible. Prior to the US-led invasion of Iraq in March 2003, British prime minister Tony Blair declared that the United Kingdom was only four minutes away from attack by Saddam Hussein’s weapons of mass destruction, a claim that was simply false. Equally, we are frequently told that the current “war on terror” presents us with problems never encountered before, even though bombing attacks on civilians by non-state operators date back at least as far as 1901. There is nothing, other than our complete historical amnesia, that is substantively different in the current situation from those that we have encountered before. The evidence from actual practice is clear. Once instituted in one circumstance, the practice of torture invariably expands—finding ever new victims.

 

In reality, all self-serving politicians and bureaucrats, all inept police officers, think their situation is unique and that they are justified in doing what would otherwise be morally impermissible. The “emergency” nature of these arguments is simply a case of special pleading. It seeks to justify in our own behaviour what we would not countenance in that of others. Rather than restricting torture, its legitimisation in emergency circumstances is nothing more than an invitation to revert to the barbarism of our past. Even under its own presuppositions, the ticking-bomb argument fails to provide a justification for the use of torture.

The Argument’s Appeal

The question then arises, how did such an obviously flawed argument get airplay at all? Why would anyone take such an argument seriously?

 

There are no doubt many answers to this question. Fear generated in civilian populations by the media portrayal of terrorist bombing attacks is perhaps significant, as is general ignorance about the actual nature of torture. But there are also other curious features in all current variations of the ticking-bomb argument. The proponents of torture all engage in conceptual diversion and they all adopt a perspective that mirrors that of actual torturers and torturing regimes. Specifically, the argument is contrived so as to make it psychologically easier for us to accept the notion of “justifiable” torture, while actively excluding the perspective of the person tortured.

 

Conceptual diversion is a form of conjurer’s trick. The conjurer diverts the audience’s attention in order magically to produce a white rabbit from a hat. Torture proponents divert the audience’s attention in order to create doubt and confusion. They write page after page defining and discussing the concept of torture. But this is really a form of misdirection. While definitions of torture are themselves philosophically (and legally) interesting, they are irrelevant to the ticking-bomb argument. This case does not require that we agree on the definition of torture. It merely invites us to consider whether torture, however we define the concept, would ever be morally permissible. (Remember, the original purpose of this argument was not to provide a justification for torture but to test the strength of seemingly absolute moral principles.)

 

This misdirection not only diverts our attention from the central issue, but does so in ways that invite us to draw false and irrelevant conclusions. Perhaps if enough confusion can be generated regarding the definition of torture, then we might conclude that what we are doing is not really torture after all. The euphemism “enhanced interrogation” is an illustration of this tactic. Fans of torture in the United States simultaneously claim that torture has been demonstrated to work, but that these successful practices (when carried out by US personnel) do not actually amount to torture. Logically, this stance is absurd. If what we are doing is not really torture, then we would not require the emergency-case scenario to justify our actions. We would merely be doing what we are morally permitted to do in ordinary circumstances. No one denies that we may use permissible techniques of interrogation.

 

The second ruse adopted might have come straight from the torturer’s handbook. Defenders of torture encourage the audience to deny moral responsibility and maintain an emotional detachment from the victim.

 

Contrary to popular opinion and Hollywood portrayals, sadists and psychopaths make extremely poor interrogational torturers and ordinary people lack both the technical and psychological aptitude for torture. It is true ordinary people can inflict horrendous violence and be induced to engage in sadistic torture, but the ability to inflict violence is not sufficient. In Afghanistan in 2002, US military police accidentally killed two detainees by beating them on the legs. The beatings unexpectedly complicated pre-existing coronary artery disease in the victims. Merely hooding people can cause fatal asthma attacks. Clearly, if the detainee dies before he or she can provide any information, there can be no justification for his or her torture. Interrogational torture requires the controlled and calculated use of violence. It requires discipline and knowledge. It also requires emotional detachment from the victim.

 

Emotional detachment is not the default position for normal human psychology. Torture requires that we overcome a very natural resistance to the cold-blooded infliction of great physical injury and suffering in others. Jessica Wolfendale’s analysis of the training of torturers discovered that the Khmer Rouge manual on torture warned against feelings of empathy or sympathy. It urged: “It is necessary to avoid any question or hesitancy or half-heartedness of not daring to do torture.” Equally, one Chilean torturer described the process involved in achieving emotional detachment thus: “When you first start doing this job, it is hard ... you hide yourself and cry, so nobody can see you.” Even Nazi doctors arriving at Auschwitz “suffered initially at the selections”, undergoing dramatic psychological changes from “revulsion to acceptance” only over time.6

Two Strategies

In other words, it is relatively easy for an enraged person to be induced to commit acts of violence, but having the stomach to torture people in cold blood is a capacity that must be acquired. It takes time and requires training. (The psychological damage caused to torturers is rarely mentioned in these debates.) Professional torturers typically adopt two related strategies to achieve this level of detachment.

 

The first involves the ability of the torturer to shift the moral responsibility for the use of torture elsewhere. A typical characteristic of professional torturers is their strong sense of duty. They rationalise their activity by suggesting that they are merely “following orders”, or are forced into it by the actions of their opponent, and so on. On each occasion, it isn’t the torturer who is responsible for the decision to use torture. The torturer is merely the instrument of larger, nobler forces and the victim is ultimately the cause of his or her own suffering.

 

The parallel with the ticking-bomb example is fairly straightforward. According to torture proponents, we are not responsible for the decision to use torture. The use of torture is a necessity imposed upon us by extreme circumstances, time constraints, and the refusal of the bomber or kidnapper to provide us with the information we need. In short, we are encouraged to shift the moral responsibility for the decision to use torture away from ourselves and onto the victim.

 

It is, of course, a fallacy that we are forced to use torture. There is no causal relationship between the act we seek to prevent and the use of torture, and there is no valid argument that might compel us by force of reason. If we use torture, it is because we choose to do so. Nonetheless, emergency-case scenarios encourage us to avoid a sense of individual responsibility by subsuming the decision under a generic principle of consequentialism and situating the decision within a contrived timeframe.

 

The second strategy routinely used to induce detachment from the victim is dehumanisation. Dehumanising the victims makes torturing them psychologically easier. The less we recognise the victims as human, the weaker are the normal constraints of empathy and morality against treating them as subhuman.

 

Thus, torture victims are frequently deprived of clothing, often made to sit or stand in their own excrement and, as we discovered in the images from Iraq, made to perform degrading acts. In Abu Ghraib, one US soldier witnessing prisoners being forced to simulate oral sex commented, “Look what these animals do.” In other words, the victims’ suffering and humiliation (caused solely by the torture) come to be seen as evidence of their subhuman qualities—evidence that then justifies treating them as subhumans.

 

Some defences of torture in emergency-case scenarios seem explicitly to exploit this technique. A report by an Australian former police officer contains the salacious description of a prisoner being tortured as “kneeling on hands and knees in his own urine”.7 Presumably, we are meant to conclude that the prisoner is an animal who deserves the treatment that causes him to be kneeling in his own urine.

 

Often, however, pro-torture arguments also dehumanise the potential victims of torture by suppressing every detail that might cause us to regard them as persons, real individuals with complex histories. We are told nothing of the would-be bomber in the ticking-bomb case, other than that he (and it is usually a “he”) is a terrorist. (Oddly, although definitions of “torture” are extensive, no proponent of torture attempts to define the term “terrorist”.)

Logical Outcomes

That the victim of torture is usually a “he” is significant. Generally, we are less likely to feel sympathetic towards males than females. However, the use of the male pronoun also allows us to avoid one of the implications of this argument. The favoured method of torturing females in the real world is rape. If the pro torture argument actually worked, it would justify rape, but I have yet to read a public attempt to convince people of this.

 

“Terrorist” is the most loaded term in these arguments. The “terrorist’s” motivation is a blank space. We are never told what motivates him or her, and so it is impossible to envisage this argument from his or her point of view. If we leave aside emotive appeals to the feelings of the relatives and friends of the bomb victims, we are left only with the point of view of the would-be torturer. We are intended to see the situation from the torturer’s point of view.

 

Although we never know what motivates the bomber it is usually clear whom we are supposed to imagine the bomber to be. The ticking bomb ticks only in London, New York, Spain, Sydney, etc. It never ticks in Iran or Palestine. However, the soundness of this argument cannot depend upon the geographic location of the bomb. If the argument worked, it would work just as well for Hamas as it does for Israel, just as well for the government of Iran as of the United States.

 

While torture advocates rarely define the term “terrorist”, they seem to assume that it is obvious that anyone who threatens the lives of innocent civilians is a terrorist. This may be so, but it has implications. If we operate under this assumption, we are forced to concede that members of the French Resistance were terrorists; that Bomber Command in Britain was a terrorist organisation during the Second World War; that the government of Israel is a terrorist organisation; and, yes, that the US government also contains terrorists. Arguably, all of these entities have at one time or another targeted innocent civilians. Indeed, it may be difficult to find a government that has not.8

 

We are not, however, meant to come to this conclusion. It may be easy for us to imagine that torturing terrorists is justified, if the “terrorist” we have in mind is our enemy. It is less easy to imagine that the Gestapo was justified in torturing members of the French Resistance, or that Iran might be justified in torturing British soldiers. But this is the logical outcome of pro-torture arguments.

 

Despite their often scholarly appearance, pro-torture arguments arising from the ticking-bomb scenario are not intended to persuade us by reason. They are not rational arguments. Rather, they play upon our ignorance of the reality of torture and encourage us to imagine avenging ourselves on the bodies of our enemies. This is the Hollywood revenge fantasy. Ultimately, the media’s insistence on presenting oppositions to every stance, no matter how implausible that opposing position, has allowed the insertion of the concept of “justifiable torture” into public discourse. This is nothing more than a rationalisation for current (untenable) political positions. We should not allow ourselves to be deceived.


Endnotes


1. Mirko Bagaric, “A Case for Torture”, The Age (Melbourne), 17 May 2005. Bagaric’s article summarised an academic paper co-written with Julie Clarke, later published as “Not Enough (Official) Torture in the World? The Circumstances in Which Torture Is Morally Justifiable”, University of San Francisco Law Review 39, no. 3 (spring 2005).

 

2. Alan. M. Dershowitz, “Justice”, Penthouse, 4 March 2025 [http://www.alandershowitz.com/publications/docs/torture.html].

 

 

3. See Philip N. S. Rumney, “Is Coercive Interrogation of Terrorist Suspects Effective? A Response to Bagaric and Clarke”, University of San Francisco Law Review 40, no. 2 (winter 2006), pp. 479−513.

 

4. Darius Rejali, Torture and Democracy (Princeton, N.J.: Princeton University Press, 2009), p. 478.

 

5. Ibid., p. 445.

 

6. Jessica Wolfendale, “Training Torturers: A Critique of the ‘Ticking Bomb’ Argument”, Social Theory and Practice 32, no. 2 (April 2006), pp. 277, 278, 280.

 

7. Cited in Seumas Miller, “Torture”, The Stanford Encyclopedia of Philosophy (fall 2008 edition), ed. Edward N. Zalta [http://plato.stanford.edu/archives/fall2008/entries/torture/].

 

8. In cases where civilians are killed, governments often make a distinction between the intentional targeting of civilians and merely foreseeing that civilians will be killed. This defence is not open to torture advocates. What matters under the consequentialist calculus are outcomes, not intentions.