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Torture and the Ticking Time Bomb Theory

Professor Stephen Griffin over at Balkanization has a thoughtful post on torture and the ticking time bomb theory in the context of Judge Richard Posner's new book, Not a Suicide Pact. Posner seems to embrace the TTB theory.

Posner comments: "In the era of weapons of mass destruction, torture may sometimes be the only means of averting the death of thousands, even millions, of Americans. In such a situation it would be the moral and political duty of the president to authorize torture. It seems odd that people who accept this point nevertheless denounce torture with such ferocity."

Griffen says,

What disturbs me is the moral shallowness of this particular scenario. Defined in a common sense way, torture involves deliberate cruelty and, as such, should be absolutely prohibited.

In understanding what is wrong with the TTB, we would do well to remind ourselves that it is a fantasy, and a fairly insidious one at that, judged by its ubiquity. The TTB is not a historical episode that we can examine in all its complexity and, as far as I know, nothing like it has ever happened (I am assuming that the TTB scenario involves a terrorist attack intended to kill at least thousands of people and is thus not about an "ordinary crime"). Instead, it is a hypothetical designed to score moral and policy points. That it has apparently scored so many is a disturbing testament to the lack of moral imagination in current public debate. For one is allowed, I believe, to counter fantastic hypotheticals with other hypotheticals.

There's lots more, and I side with Griffen. He cites a soon to be published article, Hypothetical Torture in the "War on Terrorism" by Kim Lane Scheppele, and one of the commenters provides this link to it.

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  • Re: Torture and the Ticking Time Bomb Theory (none / 0) (#1)
    by Al on Tue Oct 10, 2006 at 10:02:14 AM EST
    In the era of weapons of mass destruction, torture may sometimes be the only means of averting the death of thousands, even millions, of Americans
    . Since there isn't the slightest shred of evidence to support this statement, I can only conclude that the good judge is a sadist, in need of psychological counselling. Statements like this are only interesting from a clinical point of view.

    Re: Torture and the Ticking Time Bomb Theory (none / 0) (#2)
    by scarshapedstar on Tue Oct 10, 2006 at 10:02:14 AM EST
    These days "getting tough" looks a lot like grasping at straws.

    Re: Torture and the Ticking Time Bomb Theory (none / 0) (#3)
    by Repack Rider on Tue Oct 10, 2006 at 10:05:23 AM EST
    I wonder how the judge feels about torture just for fun? Is the same act, performed for the wrong reason, equally moral?

    Re: Torture and the Ticking Time Bomb Theory (none / 0) (#15)
    by Talkleft Visitor on Tue Oct 10, 2006 at 02:25:58 PM EST
    In the era of weapons of mass destruction, torture may sometimes be the only means of averting the death of thousands, even millions, of Americans.
    Since we have no idea of knowing when that "sometimes" might be, except in hindsight gathered from torturing people, that means that torture has to be okay all the time, just in case. I wonder if this guy would be okay with the government electrocuting his genitals a tad, to rule him out as a terrorist suspect. I'm sure he wouldn't be. The new slogan of the torture campaign could be "Just a bit, just in case." (Small print: More if you're brown or wear funny clothing, of course.) Torture is simply wrong. I don't understand how something that seemed so obvious fifty years ago is now a complicated, sometime truth. As in, "Man, I wish we didn't have to torture all these people, but we do, so oh well, what the hell."

    Re: Torture and the Ticking Time Bomb Theory (none / 0) (#11)
    by Dadler on Tue Oct 10, 2006 at 02:46:50 PM EST
    The positing of a false premise to support your opinion makes the opinion even more false. Empty-headed fear from a mind full of nothing but. "Imagination is more important than knowledge." --Albert Einstein

    Re: Torture and the Ticking Time Bomb Theory (none / 0) (#12)
    by Talkleft Visitor on Tue Oct 10, 2006 at 02:46:50 PM EST
    I agree that the TTB theory is mostly a bogus claim by this administration to incite fear and grab power. However, I bet the relatives of the victim of the (still unsolved crime) pizza delivery guy in Pennsylvania who was forced to rob banks with a bomb strapped around him and begged police to help him, would disagree with the characterization that it is a complete "fantasy."

    Re: Torture and the Ticking Time Bomb Theory (none / 0) (#13)
    by anon55 on Tue Oct 10, 2006 at 02:46:50 PM EST
    I am trying to figure out if there is any difference between the administration's attempts to stifel dissent and you're screening and selecting postings. If there is a difference please explain, otherwise there is no distinction between this blog and the administration's policies to stifel dissent.

    Re: Torture and the Ticking Time Bomb Theory (none / 0) (#14)
    by Steven Sanderson on Tue Oct 10, 2006 at 02:46:50 PM EST
    Alfred W. McCoy also covers the Myth of the Ticking Time Bomb in the October issue of The Progressive.

    Re: Torture and the Ticking Time Bomb Theory (none / 0) (#16)
    by Talkleft Visitor on Tue Oct 10, 2006 at 03:47:42 PM EST
    Sorry for above mistake. The Myth of the Ticking Time Bomb by Alfred W. McCoy should work now.

    Re: Torture and the Ticking Time Bomb Theory (none / 0) (#4)
    by Talkleft Visitor on Tue Oct 10, 2006 at 03:54:32 PM EST
    as far as the TTB theory, what about that pizza delivery case in Pennsylvania? That guy had a bomb strapped to his chest (TTB) and he was begging police to help him. To say it has never occurred seems, well, untrue.

    Re: Torture and the Ticking Time Bomb Theory (none / 0) (#5)
    by Talkleft Visitor on Tue Oct 10, 2006 at 03:54:32 PM EST
    The thing that continues to nag at me about this scenario is that it seems to me that this is the least likely scenario for torture to work. First, the victim knows that he only has to hold out for a limited period of time in order to accomplish his objective. Second, all the victim has to do to accomplish his objective is to delay in order to win. So he can freely give wrong-but-plausible information and by the time it has been checked out, the time bomb will have gone off. Then again, whether it would actually work or not seems to have always been tangential at best to the discussions on torture.

    Re: Torture and the Ticking Time Bomb Theory (none / 0) (#6)
    by Talkleft Visitor on Tue Oct 10, 2006 at 03:54:32 PM EST
    The thing that continues to nag at me about this scenario is that it seems to me that this is the least likely scenario for torture to work. First, the victim knows that he only has to hold out for a limited period of time in order to accomplish his objective. Second, all the victim has to do to accomplish his objective is to delay in order to win. So he can freely give wrong-but-plausible information and by the time it has been checked out, the time bomb will have gone off. Then again, whether it would actually work or not seems to have always been tangential at best to the discussions on torture.

    Re: Torture and the Ticking Time Bomb Theory (none / 0) (#7)
    by scribe on Tue Oct 10, 2006 at 03:54:32 PM EST
    And, the way Posner sneers at "hard-core civil libertarians" leaves no doubt where he stands. As to Posner and his 7th circuit buddies, I quote from a brief I wrote about 5 or 6 years ago:
    In Buckley v. Fitzsimmons, the plaintiff complained he had been tried and convicted based upon coerced statements of his co-defendants Cruz and Hernandez, and that the use of their coerced statements against him were actionable wrongs. On remand from the Supreme Court, the Seventh Circuit addressed the Supreme Court's holding in Buckley, supra, 509 U.S. 271. In Buckley v. Fitzsimmons, 20 F.3d 789, 794 (7th Cir. 1994), the Seventh Circuit undertook to "resolve as much of it as we can", including qualified immunity and other defenses. To Buckley's contentions, the Seventh Circuit held he had no case. He had no right to enforce as to any coerced confessions by his co-defendants; his rights were not violated by the co-defendants being coerced. It further held any violations of Buckley's enforceable rights by use of a co-defendant's coerced confession at trial were barred by the absolute prosecutorial immunity since the use would take place at or regarding trial. Id., 20 F.3d at 794-795. Indeed, the Seventh Circuit held that "...the only way Buckley can establish a violation of the Constitution is to plead himself out of court. Prosecutors are entitled to absolute immunity for actions as advocates before the grand jury and at trial even if they present unreliable or wholly fictitious proofs. 509 U.S. at 267n.3, 113 S.Ct. at 2612 n.3 (approving, or at least not disturbing, our prior holding to that effect)." Buckley, 20 F.3d at 794-795 (emphasis added).
    In Buckley, the 7th Circuit noted (explicitly) that the prosecution could put Cruz and Hernandez on the rack and extract from them a confession implicating Buckley, and Buckley could do nothing about it, save rely upon "Coerced confession practice" under a different case (Fulminante v. Arizona, I think) to keep it out of evidence. The 7th Circuit's syllogism was that, if the prosecutors didn't use the coerced confession against Buckley, he had suffered no harm because it was Cruz and Hernandez who'd been tortured. If, on the other hand, they did use the coerced confession against Buckley, the prosecutors were absolutely immune, under the prosecutor's immunity from suit. Posner and Easterbrook have had a real nut for pushing torture both qua torture and as "economically efficient" (masquerading as tough policing)- there's little surprise Posner expressly advocates for it in a book.

    Re: Torture and the Ticking Time Bomb Theory (none / 0) (#8)
    by Talkleft Visitor on Tue Oct 10, 2006 at 03:54:32 PM EST
    The response to the TTB scenario is, go ahead and break the law to prevent the deaths of thousands, and then face the consequences,such as they may be. On the other hand, maybe we should do away with speed limits, because someone might need to rush his pregnant wife to the hospital delivery room.

    Re: Torture and the Ticking Time Bomb Theory (none / 0) (#9)
    by Talkleft Visitor on Tue Oct 10, 2006 at 03:54:32 PM EST
    When framing these discussions, I think it makes sense to take a longer view. When you're at the "ticking time bomb" stage, it's already too late. Sure, torture might work, but making the situation more urgent does nothing to increase the chances of accurate information, something many experts have testified torture does not supply nearly enough of. If, however, you've been employing a more subtle, less cruel method of interrogation from the start, you just might have a better chance of finding the ticking bomb before it ever gets a chance to be deployed...

    Re: Torture and the Ticking Time Bomb Theory (none / 0) (#10)
    by Talkleft Visitor on Tue Oct 10, 2006 at 03:54:32 PM EST
    The people who are most interested in seeing people tortured in the GWOT (cough) are the same people who opposed court decisions restricting torture and "coercive interrogation techniques" on Americans. Face it: we're up next.

    Re: Torture and the Ticking Time Bomb Theory (none / 0) (#17)
    by Talkleft Visitor on Tue Oct 10, 2006 at 05:22:07 PM EST
    We torture people every day in every state in the union. The question at issue is whether police sponsored torture is ok as a state policy. Posner says it is. In doing so he is providing cover for all the Lindie Englands in all the jails and brigs in all this brave new world. For how can these torturers who have now become our civilization's next last line of defense be presumed to know where the bright line runs? It is late in the day and we, as a coutry are already way up river. "Are my methods ubsound?" " I don't see any method at all, sir."

    Re: Torture and the Ticking Time Bomb Theory (none / 0) (#18)
    by Richard Aubrey on Tue Oct 10, 2006 at 07:49:10 PM EST
    The Israelis have thought about the TTB issue, for obvious reasons. But I am not aware that it has ever happened in real life. I would suggest, though, that it is a handy template for thinking about the issue in general. Suppose, for example, that the bomb is not ticking, but the perp on hand was supposed to set it off. We'd like to know where it is before, say, a couple of kids take a whack at it with a rock. The information extracted can be checked, and if invalid, the extracttion can be tried again. The perp has no hope of trying to hold out until it's moot. In that case, it might work. So the "It doesn't work" or "it does work" issue is no longer relevant in the hypo. Then you get to the question of whether it's valid to torture to save lives. I believe Alan Dershowitz refers to a case in Florida where a perp had buried a kid alive. The cops,, he says, tortured the guy to get the kid's location and eventually saved her. Whether that information is allowable in court is a subordinate issue. In that case, if Dershowitz is right, it worked and saved a life. Now, discuss.

    Re: Torture and the Ticking Time Bomb Theory (none / 0) (#19)
    by Talkleft Visitor on Tue Oct 10, 2006 at 08:27:18 PM EST
    Last year's article in the Virginia Law Review by David Luban, "LIBERALISM, TORTURE, AND THE TICKING BOMB", says all that could ever be said to put this stupid argument in its grave. He takes on every pseudo-intellectual defense of torture that's been mounted in the last 6 years and rends it to bits.

    Re: Torture and the Ticking Time Bomb Theory (none / 0) (#20)
    by ltgesq on Tue Oct 10, 2006 at 10:28:20 PM EST
    uhm, there is no such case as the "girl in a box" scenario. That was from the film dirty harry. Perhaps we should authorize bugs bunny to toture marvin the martion before the world is vaporized with his destabilizer ray. Besides proving to the world that we are total hypocrites, sanctioned torture is ineffective as an investigative tool, as every study on interrogations has proven. We only know who the "perp" is once we have read the script. Life isn't that simple.

    Re: Torture and the Ticking Time Bomb Theory (none / 0) (#21)
    by richards on Tue Oct 10, 2006 at 10:58:52 PM EST
    TTB is that wonderland moment--sentence first then verdict-- where we agree to destroy the village (read constitutional system of laws) to save it. Only moral cowards believe that the authorities could have the kind of certain knowledge TTB presupposes. Our law is founded on the presumption of innocence precisely because, despite all the episodes of Law & Order to the contrary, the authorities never have that kind of knowledge. Next time someone suggests that government employees have the selective perspicasity TTB requires, ask them what in their personal experience with government employees supports such a willdly improbable assumption. To quote Col. Nathan R. Jessup: you can't handle the truth. Son, we live in a world that has walls, and those walls have to be guarded by men with guns. Who's gonna do it? You?! You, Lieutenant Weinberg?! I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know: that Santiago's death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives! You don't want the truth because deep down in places you don't talk about at parties, you want me on that wall! In the movie Jessup was convicted out of his own mouth by a military tribunal. Today federal circuit judges write apologetics for torturers. Anybody seen a white rabbit pass by recently?

    Re: Torture and the Ticking Time Bomb Theory (none / 0) (#22)
    by Richard Aubrey on Wed Oct 11, 2006 at 09:58:36 AM EST
    it. Then Dershowitz got fooled by the movie, too. Torture works. That there are examples of how it doesn't work doesn't mean it can't or won't. The question is whether anybody who is against it will acknowledge the possibility of paying a cost by foregoing what we could know. To say it never works is a toughie, since that's one of those assertions which can be ruined by only one counterexample. Those are legion, of course, however much you want to put your fingers in your ears. I'd think people who were opposed would seem more honest if they said what costs they were willing to bear, or impose on others, as a result of foregoing torture.

    Re: Torture and the Ticking Time Bomb Theory (none / 0) (#23)
    by Talkleft Visitor on Wed Oct 11, 2006 at 01:41:14 PM EST
    People conveniently forget that detention does not equal guilt. How many tends of thousands of innocent people is it OK to torture in situations where they don't have 'the right guy,' in order to 'save thousands' if/when a TTB scenario arrives? This speaks to the inherent immorality of the action. Also, the commenter who notes the inapplicability of torture in the TTB situation (terrorist only has to hold out for a set amount of time) is on to a major truth, IMO. This speaks to the inherent lack of desired results of the action.