Monday, October 11, 2010

The Terror of a Hypothetical: Blocking the Intuitions of the Ticking Bomb

The Terror of a Hypothetical: Blocking the Intuitions of the Ticking Bomb

Noah Cruickshank 3/8/10

Dismantling the ticking time bomb hypothetical[1] has proven to be an arduous task. In the face of empirical objections to the scenario - such as those found in Bob Brecher’s book Torture and the Ticking Bomb or Darius Rijali’s Torture and Democracy - the proponents of the TTB believe that they need only modify their examples to retain the hypothetical’s force. I shall do my best here to show that even with the strictest modifications to create the most likely scenario, the TTB still gives rise to the kind of empirical objections Brecher and Rijali pose. Thus, even the most airtight case of the TTB will still be riddled with both empirical and practical issues that suggest torture should not be used.

Still, a determined proponent of torture might accept those objections and still be committed to torturing in my particularly defined case of the TTB, arguing that there is still a chance that torture might work. And if that chance still exists it is one that we are morally required to take. I would like to meet that position head on, and argue that even if we accept that we should torture in the deeply modified TTB, this does not commit us to anything in the real world. We can grant Charles Krauthammer that there is a hypothetical where it would seem that torture is required, without granting him that this hypothetical modifies the discussion of torture entirely, so “that the argument is not whether torture is permissible, but when…[2] Even if the hypothetical is airtight (which, I will show, even in the extreme case it is not), that does not mean that it necessarily has practical application. In the end, I believe that we can be always against torture for all intents and purposes even if we grant the TTB proponent my “nearly airtight” case, since we can deny that the hypothetical has any bearing on our practical positions on torture. To put it bluntly, just because torture might work in an extremely defined hypothetical is a woefully pitiful reason to use torture in real life.

The Ticking Bomb

 I will give my own detailed account of the TTB below, but let me first give a rough overview of how most examples of the TTB work. In a given essay on torture, we are told to imagine a case where a bomb is due to go off sometime in the near future. Someone with information about the bomb’s whereabouts or deactivation code has been taken into custody. After attempted interrogation, the person is unwilling to give up the needed information. If the bomb goes off, there will be a high number of casualties. Proponents of the TTB now want to insist that since torture might be a viable option in forcing the person to give up the information, it is a morally required option.

The account above is incredibly vague, though as it turns out, it is not much worse than most accounts of the TTB in the literature on torture. There are a number of problems that occur in most presentations of the TTB, generally falling into 4 separate types: time constraints; the specific techniques that would be used and the efficacy of those techniques; who is victim of the torture; lastly, who is the torturer. To give brief descriptions of these problems now before looking at them more closely, writers generally do not define time constraints on the event specifically, do not explain what torture could or would be used and what should be expected to work, do not say who actually is being tortured, and do not say who is doing the torturing. While each of these problems bleed into the others, I will discuss each problem specifically and show how my example of the TTB attempts to counteract them specifically.

Firstly, most proponents of the TTB have no idea how long torture usually takes to work. Krauthammer, for example, suggests that the bomb will go off in one hour. This relies on a complete misunderstanding of how torture is actually practiced. Rijali notes, “Physical interrogation methods (of torture), like psychological methods, take time, time that interrogators do not have in emergencies. Real torture…takes days, if not weeks…”[3] In the face of Krauthammer’s one hour time limit, there would be no reason to torture the person withholding information, because there would not be enough time for the torture to be effective. Any example of the TTB that gives us only a few hours to interrogate a suspect already rules out the chance of torture actually working.

A TTB proponent might then expand the time frame, giving the kind of example that Fritz Allhoff does, where there is “a bomb in a crowded office building that will likely explode tomorrow”[4], but this runs into trouble as well. First of all, will the bomb “likely” explode tomorrow, or will it actually explode? But more importantly, if the authorities in this hypothetical city are aware that an office building may explode in a day, that gives them enough time to make sure people who work in office buildings could be alerted and begin a thorough search of office buildings in the area. It seems that the authorities could very easily tell everyone with an office job to take the next day off for their own safety. So expanding the time frame is problematic as well; too little time, and torture is useless, too much time and other means to save lives are available.

In light of this, I will begin to introduce my version of the TTB. Suppose that a four-man cell of Al-Qaeda has planted hydrogen bomb somewhere in New York. Let’s say the men are caught at 12:30 pm on a Monday and it is set to go off at 12:30 pm the next day, so the authorities have a day to interrogate, and possibly torture the subjects. Remember that the blast radius of a regular nuclear device is about two miles, and a hydrogen bomb is substantially more powerful than that. This means that if the bomb goes off, it is likely that not only New York city is leveled, but the greater New York area as well. New York is huge and populous, which means it would be nigh impossible to evacuate in a day, and also nigh impossible to effectively search for the hidden bomb. This does not mean that the authorities should not try to evacuate and search, but it is understood that unless they are granted a miracle, these methods alone will not stop a substantial loss of life. A day is still not a lot of time to torture with full efficacy, but it would be long enough to begin the torture process. It seems, on the face of it, that the time constraints are dealt with as best they can be. In this scenario there is not enough time to effectively use non-interrogational methods, but enough time for torture to maybe start having an effect on the captured terrorists.

But within this time frame, what torture methods are actually viable? Aside form Alan Dershowitz, who suggests that a sterilized needle be placed under the fingernails of the torture victims, most people who discuss the TTB never mention what kinds of torture can or should be used. This vagueness also stems from a lack of understanding of how torture works, and to alleviate this problem I will now suggest what might be the best bets to try in the scenario I am constructing. Rijali notes, “Short time changes a torturer’s preferences. Torturers cannot use techniques that take time, like forced standing and sleep deprivation. They must push to maximal pain fast with techniques like whipping, harsh beating, violent shaking, and electroshock.”[5] With the time frame being 24 hours, it is possible that we might be able to incorporate techniques such as forced standing that place the terrorist in an uncomfortable position, but unless those worked relatively quickly (within twelve hours, say), we would have to move on to the more brutal forms of torture that Rijali lists. We might perhaps throw waterboarding in as well, just as another method at our disposal, but it is unclear that waterboarding would provide the kind of maximal pain needed to perform adequate torture quickly. This problem also seems to apply to Dershowitz suggestion of needles.

This need to perform adequate torture in a relatively short time frame brings out the third problem that usually arises when confronting the TTB: who will be doing the torture? This is a particularly distressing point that most proponents of the TTB seem to overlook. Generally when posing the scenario, the question “Would you do it?” - as in, “Would you torture the terrorist?” – is asked.[6] But from the outset, that is a problematic question, since most people – including writers of the TTB scenarios – have no idea how to torture. If the you in this question is an average person, we can expect the torture to be brutally misapplied and deeply ineffective. In a situation as dire as the TTB, it would be ludicrous to call on a neophyte if torture was the chosen option to extract information. As Brecher puts it, “The ticking bomb scenario requires us not to imagine what we would do, but to imagine what we would require someone else – a professional torturer – to do on our behalf; and…as the practice of their (sic) profession. The institutionalization of the profession of torture is a necessary condition of the example’s even getting off the ground…”[7] The only way that torture might work in a TTB scenario is if the person torturing knows what he is doing – he must be a professional. So to keep my scenario as airtight as possible, I will have to admit to there being professional torturers, and their use in this case. Lucky for us, we know the US has these kind of men working for them, so let us assume that one of them is in New York city with us, ready to torture these four Al-Qaeda members if the authorities say the word. This stipulation already deeply compromises the scenario – since by assenting to torture we would be implicitly assenting to the profession of torturer – but it seems the only real way to “get if off the ground,” as Brecher says.

Lastly, there is the problem of who the victims are. I have already said that in this TTB, our possible victims are a four Al-Qaeda operatives working together. Let us suppose there are no others in their specific group. Let us also suppose that the spy that brought them in is trustworthy, and has provided ample evidence to show that these are the men who planted the bomb. On occasion the TTB examples are so vague it is unclear who is to be tortured, and thus an easy way to reject the hypothetical is that we could be torturing an innocent person. I want to do away with such objections, so let us stipulate that we know for sure – due to the outstanding work of our intelligence agencies, that we have the men. Furthermore, they have been trained in interrogative techniques, and will not speak.[8] Any question posed to them is responded to with silence. Thus their interrogators cannot get any of their techniques going to try to glean some information about the location of the bomb.

Let me recapitulate the scenario for clarity. There is a hydrogen bomb under New York city and we have a day to find and defuse it. This is not enough time for a full evacuation of the city or a comprehensive search for the bomb. Due to some very good intelligence, we have all the members of the terrorist group (Al-Qaeda) who planted the bomb in our custody. The suspects will not talk, thus interrogational tactics are useless. We also have a professional torturer on hand, who would be able to make the best use of the brutal techniques needed for such a small time frame to get results. There is still no guarantee that torture will work to loosen these men’s tongues, but of all the TTB examples I have seen this gives us the best shot of torture being effective. Let us also suppose that this is top secret, and will not be known by the public, thereby quelling objections on the ground that this act of torture would have a devastating social impact. So now the question can be posed: should we tell our professional to go ahead and torture these men? I now want to give an empirical and practical case for why we should say, “No.”

Empirical and Practical Problems with the TTB

Even with the TTB as airtight a case as we can have it, there are still a multitude of problems that arise, all of which suggest that we should not torture. I want to go through the general problems of the TTB again and show that even in my scenario there is still a lot of evidence to show that torture would be ineffective, and furthermore the practical consequences of getting the hypothetical “off the ground” are also deeply worrying.

Let us begin again with the time constraints. While managing to allot twenty-four hours for interrogation does give our professional torturer some time to work effectively, it is still not clear whether this would be enough. Rijali notes that “Hardcore believers, including presumably the common terrorist, do not break quickly.”[9] This usually occurs for a few reasons: firstly, “For decades, guerilla organizations have made ‘torture contracts’ with their members: if you get arrested, keep the interrogators busy for twenty-four hours and let us change the passwords and locations…’”[10] In our case of the TTB, the tortured Al-Qaeda operatives know that if they hold on for a day, the bomb will go off and the torture will end – either because they have been killed in the explosion or there is nothing for him to give up. By stipulating twenty-four hours to give time for the torture to work, we have also given the terrorists a goal – just get through the day. With something like this in their minds, the terrorists will be harder to break. Secondly, the CIA Kubark manual notes, “Persons of considerable moral or intellectual stature often find in pain inflicted by others a confirmation of the belief that they are in the hands of inferiors, and their resolve not to submit is strengthened.”[11] An Al-Qaeda operative will surely view the American torturer as an inferior, and since the operative believes he is on a mission from God, there is a good chance torturing him will only strengthen his resolve to not speak.

Concerning the efficacy of torture tactics in the TTB, there is a direct problem with attempting to achieve “maximal pain,” immediately. Suppose the torturer, through electroshock or harsh beatings, manages to reach the pain threshold for the victims, and yet they still do not break. Many torture victims describe a numbness that sets in once they reach a certain level of pain.[12] If maximal pain is reached, and the victim is not broken, then what is the torturer to do? Even the best method to break the victim in a short amount of time comes with a cost, in that torture will lose any possibility of efficacy if it is not effective from the get go.

Furthermore, if these men are terrorist operatives in the United States, they should be prepared for the possibility of capture. We stipulated that these men were keeping silent, and trained in interrogation tactics as a way to force our authorities into torture as an option. Knowing that, it is ludicrous to believe that they were somehow not prepared for torture as well. Either the men have not been trained to undergo any interrogative techniques, or they have been trained to undergo all kinds of them. In the case of Al-Qaeda, the latter is far more likely. Thus even with a day we probably would not have enough time for the torture to work, since our victims would already be prepared for such measures and could resist them.

Again, if the victims of our intended torture are prepared – and we should expect that they are – it is very hard to see how effective torture would be. Even if we are using techniques such as electroshock that strive for maximal pain immediately, if they are trained to handle great pain it will doubtful that these techniques will work at all. A more likely way to break our victims would be something like threatening to torture or in fact torturing their loved ones – this is how Khalid Sheikh Mohammed was finally broken, for example. But this gets us into dangerous territory, both empirically and practically. Unless these men have friends and relatives living in New York, a day is not a lot of time to find their families and set up an effective scenario where we would be able to – or at least make it appear that we could – torture them. It is not impossible, only very unlikely to work within the confines of a day.[13] Also, this would mean that we would have to accept torturing – or even murdering – innocent people. That sets a dangerous practical precedent, even if the authorities never publicly disclose their actions. Many people who agree to the TTB might be happy to torture the terrorist, but how would they feel about his innocent sister in Jordan? If we want the best torture techniques available to us to defuse the bomb, torturing innocents is right up there.

This of course connects to the question of who is being tortured, and I have little else to say about the subject, expect to reiterate that if one assents that torturing the terrorist is morally required because it might be effective in stopping the bomb, it is hard to see how torturing his family is not required as well, since there is evidence that it too might be effective. If in response the TTB proponent says, “Well, we don’t torture innocents on principle,” it seems reasonable to say “Well, we shouldn’t torture anyone on principle.” If we limit our torturing practices based on principle, why not eliminate them altogether on principle as well?

Lastly, as I noted before, having a professional torturer to do the work for us in this TTB will be the only possible way that the torture might work, but that leaves us open to the practical problems of having the professional torturer around. First of all, to have professional torturers means we would have to train people to become professionals in torture. As Brecher puts it, “To admit the profession of the torturer to the range of legally recognized professions would require that we recognize torture training in the same way that we recognize, for example, legal, medical and teacher education and training….”[14] To have this man at our disposal in the TTB case means we must create a system where that man could learn his trade. Brecher specifically speaks of legalizing the torturer’s profession, but we need not go that far: perhaps we have a secret torture program that is officially illegal, but in place nonetheless. Yet having a secret system to teach torture does not seem much better than having an open, legal system to do it. To assent to the TTB means to assent to having a cadre of trained torturers at our disposal, whom we pay and train.

Brecher points out a further issue concerning the problem of “who does the torturing?” “The necessary role of medical personnel (in torture) is well documented,” thus if torture became a practical possibility, it would make “medical cooperation, advice, and training in interrogational torture on a par with the provision of medical services in prisons.”[15] Not only would we have professional torturers, but professional torture doctors. Brecher and others[16] tease out the many implications of having torture as an institution, but for the sake of space I will not discuss them further. Suffice it to say, the professionalization of torture – the creation of a entire system of practices where torture is taught and refined – means that we are not limiting ourselves to torturing only in the case of the TTB. If we have these professionals, what would stop the authorities from using them in less dire situations, or situations where torture would be more effective?[17] Furthermore, it is hard to see how these torturers could become skilled without practice. It is conceivable that they only train in role-playing exercises – perhaps each torturer in his training must be tortured so that his classmates can have practice, etc. – but even then it seems that we are obliging them to torture innocent people as a part of learning their trade. Either they need to torture possibly guilty people outside of the TTB to learn how to torture, or they torture their innocent companions. This is already problematic without the other repercussions that Brecher and others suggest.

Even with this “mostly airtight” TTB, there is still no guarantee that torture would be effective – indeed, no guarantee that torture might be effective; there also appear to be dangerous practical repercussions that appear from stipulations we must make to have the hypothetical get off the ground in the first place. If it is unclear that torture is even a viable option in the TTB, there seems plenty of reason to answer “no” to the proponent of torture. If it will not work, then why subject the victim, and ourselves, to this degradation? Furthermore, we might be unwilling to create the kind of system needed for torture to even be a viable option in the TTB – having professional torturers and the like. The TTB usually pulls at our intuitions – the feeling that we must do something, anything, to stop the bomb from exploding – but I do not think that having a professional system of torture has much intuitive pull for anyone. Assenting to the TTB is assenting to everything the professional torturer must do to become effective when the TTB case emerges[18] - that probably means a whole lot more torture.

But, a proponent of the TTB could still be adamant that torture is a moral requirement in this case because it might work. No matter how improbable the chance, the proponent might say, there is a chance, and it is one we must take in order to save lives. A proponent of torture in the face of a ticking bomb might very well accept the fact that we would have to have professional torturers, and all that they entail. The proponent might say it is an unfortunate necessity, a lesser evil in the face of this possibility – even though this possibility is beyond remote. Richard Posner seems to be of this opinion, suggesting that we let the government do terrible things in secret for the greater good. When considering my TTB and the problems with it, I believe Posner would still say we should keep torture on the table, and everything that comes along with it, because there is a chance for success. The question now is, what do we say to such a person? How do we respond to the person who accepts the large empirical evidence against torture and the practical implications that professional torture has, yet still thinks that in the case of the TTB torture is morally required because it has a chance of working? I want to take the next section to see how we can grant the proponent of torture my TTB while still keeping our hands clean.

The Failure of the Hypothetical
Even if a person accepts the fact that in this highly specified TTB scenario, he or she would be morally required to condone torture, it is not clear that this gets the proponents of torture anywhere. As noted in the introduction, Charles Krauthammer believes that if we grant him the TTB, it changes the discussion, so “that the argument is not whether torture is permissible, but when…[19] I do not believe that we need to agree with Krauthammer on this point. Agreeing on a nigh-fantastical hypothetical has no bearing in the real world – it has no bearing on our practical discussions concerning whether we should torture or not.
The proponent of the TTB wants to first place us in a hypothetical where we might agree to torture, and then expand the conditions of the hypothetical, arguing that if we agreed to the TTB we have little ground for denying other, similar cases. So once we’ve agreed in the case of a ticking bomb, the proponent of torture then shifts the discussion to when, as Krauthammer says, arguing that there are similar cases to the TTB, and by the same logic we should agree to those as well. This is brilliant sophistry, but sophistry nonetheless.
The only reason the TTB I posed above made any sense was due to its highly specified constraints: there needed to be an exact window where methods other than torture would not be as effective; there needed to be a number of incredibly improbable occurrences – we knew that we had those responsible for the attack, we knew exactly when the bomb would go off, etc. And even with those specificities, we still had to allow for a professional system of torture, and had to grant that there was seemingly good reason to torture innocents if we agreed that torture was required. The moment any of those specificities are expanded, the hypothetical collapses, and thus the claim that torture is morally required also collapses. Contracting the time frame leaves torture to be ineffective. Expanding the time frame means there are other, better techniques at our disposal. Changing the bomb from something catastrophic like a Hydrogen bomb means that things like evacuation become possible. Even moving out of New York city means that there is a far greater chance to search for the bomb and evacuate the city. The TTB only works – and it hardly works, at that – with these specificities. Taking them away means torture is no longer viable.
So we can respond to Krauthammer by saying, “No, the discussion is still about whether. If there is only one possible occasion[20] where torture might work and so would be morally required, then there is no reason to do it in any other case.” Krauthammer believes that if we give him an inch, he can take an ell, but we need not let him do so. I personally do not believe that we should even believe that torture is morally required in my TTB, but even if it is, the hypothetical has no practical application, because the moment you try to apply the TTB, you have to change its structure, and by doing that you turn it into a case where torture is ineffective in comparison to other methods, and thus can be dropped. This means that we can hold a position that is not absolutist, per se, but for all practical purposes has the same import. If there is only one possibility where torture would make any sense, there seems no reason to prepare for that particular possibility over the innumerable others, most of which are more likely.
The truth is that men like Krauthammer have won a battle in a fantasy world, and they want this victory to have a direct bearing on real life. But consider any other deeply improbable hypothetical – Martians land and in order for them to not make war on us you would have to let them subject you to some sexual degradation. You might be convinced that you were morally required to do it, but that has no bearing on real life. It might seem that my analogy is far fetched – the proponent of torture might say “we know that there are terrorists, we don’t know that there are Martians willing to kill us.” That is very true, but try to guess chances of four men planting a hydrogen bomb under New York City, our authorities finding all of them, knowing we have a day, knowing for sure that they are the ones who did it, and that torture would work on them. That seems just as improbable, or not much less improbable than alien life wanting to exchange sexual degradation for peace.
I have been a bit facetious above, but in the hopes of showing that we need not let a ridiculous hypothetical hold sway over our practical considerations of torture. Let the Charles Krauthammers of the world have their TTB, just because he has managed to show that we are not absolutists does not mean that we should believe that torture is justifiable in the real world. Furthermore, if we spend our time and interests trying to create a world where people do not feel that they should blow each other up, the more we reduce the chance of any ticking bomb. Torture is not a practical solution, and the ticking bomb should not trick us into thinking that it is.


[1] For the sake of space, I will generally refer to the scenario as the TTB.
[2] Krauthammer, The Truth About Torture, 309 from Torture: A Collection, Ed. Levinson.
[3] Rijali, Torture and Democracy, 474.
[4] Fritz, On the Permissibility of Torture, International Journal of Applied Philosophy, 17, p.129
[5] Rijali, 474.
[6] Jacobo Timmerman, himself a victim of torture, ends his TTB hypothetical with exactly this question. (From The Torture Debate in America, edited by Karen J. Greenberg, 18)
[7] Brecher, 24.
[8] As I note below, if these men are trained in interrogation techniques they will also be trained to resist torture, leaving us with another problem with the efficacy of torture.
[9] Rjali, 476.
[10] Rijali, 475
[11] As quoted in Rijali, 476
[12] Henri Alleg, for example, says so in his personal account of torture.
[13] Imagine that one of the terrorists has family in Egypt. We would have to get into contact with our men on the ground there (or the Egyptian government), find the family members (which could take a lot of time if they are in hiding), set up an interrogation, and then provide proof to the terrorist that his family is in danger. This would be quite the process, and if he nonetheless stands firm, it would be a lot of work for nothing.
[14] Brecher, 70.
[15] Brecher 70-71.
[16] David Luban being another notable example.
[17] If the torturer had weeks and not a day to break his victim, for example.
[18] If it ever will, considering that it is highly improbable.
[19] Krauthammer, The Truth About Torture, 309 from Torture: A Collection, Ed. Levinson.
[20] And again, this possibility is so small as to be non-existent.

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