THE TICKING BOMB SCENARIO

The ticking bomb scenario is the ultimate ends-justifies-means argument. In its purest form, the ticking bomb scenario has two certainties: first, loss of life or horrific tragedy if something is not done to prevent an event that is well defined and imminent, and second, a hostile individual who knows how the event can be prevented. The challenge then is simple: make the hostile individual spill the beans.

In the real world, however, uncertainty is the norm. Pure ticking bomb situations are few and far between, maybe almost nonexistent.

Take the current controversy over the torturing of Al Qaeda prisoners captured by the United States in the War on Terror after 9/11. A rationale being advanced is that the torturing was necessary to prevent further attacks on the United States. But the certainties were lacking. Although many types of events were hypothesized, at least some of them possible, no U.S. official knew of a specific plan or imminent event. Similarly, although several Al Qaeda higher ups were captured, whether they had knowledge of specific plans for future attacks, or an imminent attack, on the United States was unknown.

So the justification for torture, the end justifying the means, was simply possibilities: it was possible that a particular individual had knowledge of some possible evil that was possibly about to be rained down upon the United States. Such a standard becomes very subjective very quickly, and in the hands of some individuals can degenerate into little more than fishing expeditions for elusive tidbits of information.

Some contend that the torture revealed intelligence about actual plots that were then prevented, and that documents exist proving this. It’s a safe bet that if the documents are made public, not everyone will discern such clarity. Moreover, this line of argument ignores the exponential increases in security measures, and the offensive military and police operations, that occurred after 9/11. The reason the actual plots did not go forward may well have been the heightened security environment rather than information produced by torture.

But let’s return to the pure ticking bomb situation. If there were certainty about the looming threat and certainty about some hostile individual having the knowledge to prevent it, would the end automatically justify the means, would torture be permissible to extract that knowledge? For some, maybe even for a sizeable majority, the answer is, “of course.” But for others, another simplistic formula rules: two wrongs don’t make a right. For these individuals, torturing someone for information no matter how imperative the information is not permissible.

Let’s up the anti. What if the ticking bomb is a weapon of mass destruction capable of killing millions? What if we are a few centuries, or maybe just a few decades, down the road, and the ticking bomb is powerful enough to end civilization, to obliterate the planet? What say you then?

Here’s a religious answer, but it’s certainly not an answer with which all religious people would agree. The ultimate goal of humankind is not to perpetuate an earthly kingdom. The ultimate goal is the hereafter. So evil means are not justification to ensure an earthly kingdom. If the choice is between an evil act or the end of civilization, then perhaps the time has come for the Apocalypse.

But let’s return to today’s reality. Most would agree that torture is immoral and illegal. But many might argue for the caveat of “exceptional circumstances.” Okay, but if that is the case, let’s not try to define those exceptional circumstances beforehand, as suggested by some. The many possible exceptional circumstances are just too varied. And what legal standard would be applied? Preponderance of the evidence, beyond a reasonable doubt? No, the judgment should be an after the fact determination. If the direct, undeniable result of the torture were the saving of a life or lives, then that fact goes to the mitigation of a crime.

Does this put a tremendous burden on the potential torturer? Damn right. And that’s where the burden should be. If a Dick Cheney or a Donald Rumsfeld thinks torture is necessary, then they should not be separated from the unpleasantness by layers of bureaucracy and a banal codification of evil. They should be in the room, ideally pouring the water or slapping the head themselves, but at least providing onsite supervision to a willing underling, who also is risking legal jeopardy. And at the subsequent inquiry, the Cheney, the Rumsfeld, and their underlings can argue for mitigation based upon lives saved or tragedy averted. After the fact mitigation is not automatic. The torturers have to convince the judge or jury.

If such an approach effectively removes the torture option, fine. Because ultimately, the torture issue comes to this: we’re the United States of America, and we’re better than that.