Wednesday, December 12, 2007

Does Waterboarding Save Lives? Should It Matter?

Comes now former CIA Agent John Kiriakou to say that: (1) the waterboarding of the previously tight-lipped Abu Zubayda led him to give up Khalid Sheikh Mohammed and otherwise inform the govt about the operations of al Qaeda; (2) the capture of Khalid Sheikh Mohammed and the other use of the info obtained from Zubayda thus saved the lives of persons who otherwise might/would have perished in terrorist attacks; but (3) the U.S. should not engage in further waterboarding going forward because "time has passed, and we're more on our feet in this fight against al Qaeda, and I think it's unnecessary."

How does this all fit together? First, as to conclusion (2), well maybe. If we're speaking in utilitarian terms, it's very hard to know whether more lives were saved as a result of the actionable intelligence obtained from waterboarding Abu Zubayda than will be lost as a result of the additional terrorist attacks to which it could lead. A conservative friend of mine recently said to me, plausibly, that the people who are inspired by their government-controlled media and radical clerics to commit acts of violence against Americans will be so inspired and will commit such acts regardless of how the U.S. actually behaves. To which the answer, I think, is that even granting this point, preventing and foiling terrorist plots requires the assistance of well-informed people around the world who would not become terrorists themselves but whose opinion of the U.S. and its government plays a large role in their willingness to cooperate with us.

Suppose, however, that we grant (2). Suppose, that is, that the waterboarding of Zubayda did save lives. One might still think, on Kantian or even rule-utilitarian grounds, that it was nonetheless wrong, and it's possible to read Kiriakou as saying this. However, his point (3) seems to imply that this is not his view, that is, that the waterboarding of Zubayda was "necessary" because of the lives it would (and he says, did) save, but that waterboarding other captives would be wrong now because it's not necessary. If this is what Kiriakou is saying, then he is making only the morally obvious point that one shouldn't torture people for no good reason. I don't know anybody (who is not a monster) who disagrees.

The morally important question is not whether to torture when it's unnecessary but whether to torture when (one believes) it's necessary to save innocent lives. There is a substantial body of philosophical literature on this question, and though I myself favor a categorical prohibition on torture (including waterboarding) in all circumstances, the argument for a narrow exception in the case of the ticking bomb cannot be easily dismissed. The familiar dodge that torture "doesn't work" is an overstatement. Of course torture doesn't always work, but even if Kiriakou is wrong about it having worked in Zubayda's case, there are historical examples of it working. (See, for example, some of the successful uses of torture by the French in Algeria, as recounted in Alistair Horne's A Savage War of Peace). The problem with revelations like Kiriakou's and the inevitably superficial news coverage of the issue is that what should be a starting point in the public debate about the question "is torture wrong even if it's sometimes effective" ends up becoming an end point.

Posted by Mike Dorf


  1. the "ticking bomb" scenario is nothing more than a republican talking point. someone who saved an entire city by torturing an individual would not be prosecuted. if prosecuted, they would not be convicted. if convicted, they would ultimately be pardoned.

    on a purely philosophical level, the polemic of "do the ends justify the means?" usually boils down to a simple answer: sometimes.

  2. Prof. Dorf, do I understand your argument to be that law and morality, at least in this case, are co-extensive? That is, the President has no power to do an immoral act, and has power if the act is not immoral?

    If so, does that only apply to torture issues? To all Article II issues? To all legal issues?

  3. 1) Benjam: I agree that someone who successfully foiled a plot involving a ticking NUKE by using torture would probably not face serious legal consequences, but the ticking bomb argument is used to support torture (or near-torture) in cases where the harm to be averted is smaller (10 innocent lives, say, or even 1). Again, the Algerian example shows that this is not purely fanciful.

    2) Sobek: No no no. The law is clear on this point. Torture is illegal. Whether a particular interrogation method (such as waterboarding) constitutes torture is an independent question of whether it is morally justified. I take the public debate in these cases to be addressing three questions: a) Should torture continue to be illegal in all circumstances or should we change the law? b) Even though torture is illegal, are there nonetheless circumstances in which the morally correct thing to do is to break the law and commit torture? c) If we conclude that some harsh interrogation method is morally justified in some circumstances, and if there is reasonable debate over whether that method of interrogation constitutes torture, shouldn't we interpret torture so as not to encompass that method under those circumstances? As I said, I think that c) confuses the issue, because the conclusion that a method is legally permissible means it's legally permissible not only to avert a catastrophe but also in routine cases.

  4. I don't think the "ticking time bomb" scenario offers anything instructive to the policy question.

    By the hypothetical's own conditions we'd have be 100% sure about things that wouldn't be that airtight in the real world.

    With close to 100% certainty, we'd have to know:

    1. That there most definitely IS a bomb, and that it's not just a hoax...

    2. That the person most definitely knows something substantial about it -- location, plotter names, etc...

    3. That there isn't any other way to locate it...

    I'm sure there are more.

    So if a proponent concedes we likely can't be sure on any of these counts, the argument's scope broadens by necessity to remain valid. In other words, to make the exercise applicable, you have to allow for subjective judgments. And as a matter of policy, that's very ripe for abuse -- too ripe, in my view.

    In the end, such a policy leads to the following cost / benefit:

    On the one side, you create a policy based on an extremely unlikely scenario: where we're close to 100% certain that a "ticking bomb" awaits, and that a suspect knows important details about it.

    On the other hand, the policy creates (with near certainty) backlash against the U.S. in many ways -- our soldiers being treated more poorly in some future war; more moderate Muslims becoming militants as the bin Laden's of the world are vindicated; other countries taking a step away from us, allowing more terrorist activity to slip through the cracks compared to how it would be in an environment where there is close law enforcement coordination; etc.

  5. I really don't think torture itself should be an issue - morally or

    In open war we have a contract with those against whom we may engage and that contract prescribes torture. But that is not what we are talking about here. What we are discussing is torture in the context of what is essentially law enforcement.

    To me, the issue comes down to two things:

    1. Is it likely to work in some reasonably consistent manner. That is, will torture lead to useful information more often than it will lead to misinformation or no information at all? I don't know the answer to that, but it needs to be answered.

    2. Is the person subjected to torture a person with a "guilty mind." That is, regardless of the possible utilitarian benefits I do not think it would be right to use torture to extract information out of someone who is simply a "innocent bystander." Someone, who, for example, might have come upon the information by way of relationship to a "guilty minded" individual but who has no other relationship to the acts/plots.

    With those two points satisfied, I have no problem with the use of torture, itself, in law enforcement and would think laws should be changed to reflect those understandings.

    That to me, is the torture issue in a vacuum.

    The third, larger issue, however, is the ancillary effects of such a policy. these are a myriad of considerations and include as the bigger considerations foreign relations and the effect of open torture on the American psyche (e.g. will acceptance of such brutality have an undesirable effect on our society as a whole - such as devaluing of life).

    I, again, am not in a position to evaluate these considerations, but feel they do require competent evaluation to warrant a change in the law - even in cases where the immediate utilitarian result is favorable.

  6. mike:

    i guess we should stop calling it the "ticking-bomb" scenario and start calling it the "ticking-really-bad-car-accident" scenario. somehow i dont think that will catch on with the pro-torture set.

    pure utilitarianism often leads to results that offend notions of western morality. from a political perspective, the concept of (civil) rights works as a counterbalance to state authority. from the philosophical standpoint, however, the concept of (natural) rights (or rule utilitarianism or the categorical imperative) helps us to avoid these morally-perverse outcomes.

    if you grant the idea of rights, they are inviolable. the hypothetical about torturing or killing one person in order to save 10 people does NOT ask us to decide the relative values of one person's civil rights versus the lives of 10 innocent people. rather, the scenario makes us choose between the relative value of 10 lives and the value of living in a society which grants people civil rights.

    under that more accurate formulation, the calculus doesnt seem so challenging.

  7. Benjamin wrote:

    the scenario makes us choose between the relative value of 10 lives and the value of living in a society which grants people civil rights

    Or a society that fetishizes civil rights to the point that it will sacrifice any number of lives to preserve them....

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