Alan Dershowitz on Ticking Bomb Torture

Alan Dershowitz seems to think that “ticking bomb” (TB) cases end the discussion about whether torture is justified. All that's left to discuss is whether we are to torture covertly or openly:

“Although I am personally opposed to the use of torture, I have no doubt that any president--indeed any leader of a democratic nation--would in fact authorize some forms of torture against a captured terrorist if he believed that this was the only way of securing information necessary to prevent an imminent mass casualty attack. The only dispute is whether he would do so openly with accountability or secretly with deniability.”

Obviously, if a leader believes that torture is “the only way of securing information necessary to prevent an imminent mass casualty attack” they might authorize torture. The question, of course, is should they believe it? Is it, in fact, true? An authorization of torture based on a false belief in its efficacy would warrant not only the moral commendation Dershowitz’s personal opposition to torture would presumably bring, but legal condemnation as well.

Declarations to the contrary aside, there is a dispute about whether torture is ever the only way, or even the most expeditious way, to secure accurate, actionable information in a ticking bomb scenario. Dershowitz does not address these larger questions. In the only example of a real world TB case that he offers the vital information that averts imminent danger is not obtained by torture. After recounting it, Dershowitz asks: ‘what if lawful interrogation hadn’t worked in this case?’ Well, what if it hadn’t? It is hardly self-evident that we should default to torture just because it’s all that’s left. Dershowitz gives us no reason to think authorizing torture would be justified if this were so, he only offers this tilt at a straw man:

“There are some who claim that torture is a non-issue because it never works--it only produces false information. [Who?] This is simply not true, as evidenced by the many decent members of the French Resistance who, under Nazi torture, disclosed the locations of their closest friends and relatives.”

Clearly, torture can produce accurate information. That alone will hardly serve as a justification for authorizing it, any more than the fact that the Nazis produced useful medical information via experimentation on unwilling human subjects would justify authorizing that practice.

While torture can work, the overarching practical problem for torture, a problem heightened in TB cases where time is of the essence, is always how to winnow what’s true from what’s said in an attempt to end the torture. Dershowitz apparently has this problem in mind when he offers this distinction:

[Torture applied in a TB situation] “ …is not designed to secure confessions of past crimes, but rather to obtain real time, actionable intelligence deemed necessary to prevent an act of mass casualty terrorism. The question put to the captured terrorist is not "Did you do it?" Instead, the suspect is asked to disclose self-proving information, such as the location of the bomber.”

By invoking the idea of "self-proving information" in his distinction between torture for confession and torture in TB cases, Dershowitz seems to be suggesting that the general unreliability of information obtained by torture (e.g., the unreliability of confessions obtained by torture) can be offset by the use of questions that elicit this kind of information.

But what is “self-proving information"? Dershowitz seems to have in mind statements like: “the bomber is at 123 Main St.,” which suggests that “self-proving” is nothing more than “verifiable.” Statements such as “the code to defuse the bomb is 3451” obtained under torture are clearly verifiable. If you enter it, and its really the detonation code, the resulting explosion will neatly verify that the statement is false.

There’s no reason whatsoever to think that because the questions asked in a TB case are different from those asked when torture seeks a confession, the information obtained is somehow more reliable.

Under what circumstances, if any, would a leader be justified in authorizing torture to save innocent lives? Merely being confronted with a TB scenario isn‘t enough, as Dershowitz’s own real world TB case shows: no torture was necessary to resolve it. The fact that torture can work isn’t enough either. If that alone were sufficient justification all torture would be permissible and a leader would be justified it authorizing it carte blanche. If anything justifies authorizing torture in a TB case it is a well-founded conviction that torture is, in fact, the only interrogation technique capable of producing the accurate, actionable information necessary in the time available.

But upon what would a leader base this conviction? The almost universal consensuses among interrogators seems to be that statements obtained by torture are less reliable than those obtained by conventional techniques. Misleading talk about “self-proving” statements aside, there is no easy way to quickly separate truthful statements obtained by torture from lies told to end torture. Quickly obtaining the least reliable information is not what ticking bomb cases require.

But even if torture is generally unreliable, when all else fails, and the bomb is still ticking, wouldn’t a leader be justified in authorizing torture as the only remaining way to prevent mass casualties?

First, lets be clear in a way Dershowitz is not that such authorization could never be based on the fact that casualties will be prevented by torture. At best, torture offers a slim hope that they might be prevented. But if torture in general isn’t justified simply because it might work, then torture in TB cases in particular is not justified simply because it might work. Appeals to the number of victims that might be saved verses one terrorist who will be tortured won’t work either. If torture in general isn’t justifiable simply because it is cost-effective in terms of lives and/or suffering, then torture in TB cases isn’t justified for that reason alone either.

Authorizing torture as a “Hail Mary,” just because it might work, is morally indefensible. If allowed to justify, say, waterboarding this way, the same argument (“it might work, and if it does, many will be saved“) could be used to justify the most barbarous extremes. (“Captured terrorist Al Badgai swears he’ll reveal the location of the ticking nuke if I behead Dick Cheney in front of him. I have every reason to believe he’s sincere, so it just might work….”)

Authorizing torture in a TB case based on the mistaken conviction that torture is more, not less, likely to produce reliable, actionable information, or because torture is all we have left, is wrong.