Thoughts on Law, Politics, Economics, and More from Michael Dorf, Neil Buchanan, Sherry Colb, Eric Segall, and (Occasionally) Others
Tuesday, May 03, 2011
Bin Laden Was Not a Ticking Bomb
By Mike Dorf According to the emerging account of Sunday's raid, the key lead in the case was the location of bin Laden's trusted courier, whose identity, in turn, came to the attention of the government at least in part from information provided by Khalid Sheikh Mohammed and/or Abu Faraj al-Libi. That has led some people to argue that the "enhanced interrogation methods" to which KSM was subjected (and to which al-Libi was presumably subjected while kept at a CIA black site before being transferred to Gitmo) "worked," even as othersargue that the key leads were developed from more conventional interrogation methods. I have little doubt that this debate will continue, but it shouldn't. Even if useful info was obtained from KSM and/or al-Libi via torture, that doesn't prove that the same info couldn't have been obtained (perhaps even earlier) through lawful interrogation. But suppose the torture apologists are right about the inherently unprovable counterfactual in this case. So what? Although some people say that "torture doesn't work," this strikes me as false, at least sometimes. The reason not to torture is not that it doesn't work, but that it's illegal and wrong. Even if it's not wrong in the "ticking bomb case," categorical prohibitions on torture assume (quite reasonably) that an authorization to conduct torture to find and defuse ticking bombs will be abused by authorities who start hearing bombs ticking everywhere. The country's understandable catharsis over the death of Bin Laden should not obscure the fact that this very case proves that the ticking-bomb justification for torture tends to expand. Bin Laden was not a ticking bomb. In the standard hypothetical cases involving ticking bombs, the authorities must use torture as a last resort because the bomb will explode in mere minutes if they do not find and defuse it first. Here, by contrast, the torture took place years before painstaking follow-up work led to Bin Laden's whereabouts. And by contrast with a defused bomb, we don't even know--and in a Rumsfeldian sense it is unknowable--whether killing Bin Laden will make us safer or less safe. Thus, in order for the killing of Bin Laden to count as an argument for torture, torture must be morally justifiable not just in ticking bomb cases but whenever it seems like it would be useful in developing information that could lead to bringing to justice a perpetrator of past (admittedly terrible) crimes, even though that bringing-to-justice might end up inspiring the erstwhile miscreant's followers to commit more crimes than they otherwise would have. Perhaps an argument for the moral permissibility of torture could be developed even then, but I haven't seen the argument made yet.