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 others argue 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.


michael a. livingston said...

I think the analogy to speeding, of all things, is relevant here. Everyone knows that people drive faster than the speed limit in emergency cases, just as everyone pretty well knows that interrogators break the rules when they have to. But if you create a rule that says it's OK to drive 80 mph as long as you have a good reason, very soon all traffic will be going at 80 (or 90, or 95) mph. The same basic rule applies for torture: once it's OK in some cases it inevitably becomes the new norm. Which is basically what is happening.

Michael C. Dorf said...

I totally agree with Michael L here. Oren Gross has written persuasively on this point as has Eyal Benvenisti.

Ori Herstein said...

Well, if we are mentioning Israeli scholars, one wonders what do you guys make of the Israel supreme court's solution of not legalizing the use of torture in emergency cases but of making the necessity defense available in such circumstances? Do you think that such a defense will indeed swallow the prohibition? Is that the argument?

Also, I am guessing that most Americans would view the Bin Laden case as a demonstration that the ticking bomb exception for torture is not sufficient, and not that the presumed interrogation was wrong because it did not meet the ticking bomb exception. I remain agnostic about this. For me, the moral intuitions of "the masses" or not more suspect than those of the practitioners of human rights idolatry.
(am I in trouble now??)

Michael C. Dorf said...

Ori, I have two thoughts:

1) Both Gross and Benvenisti say that torture should be illegal, full stop, so there's no legal defense of necessity or anything else. Gross recognizes that this will sometimes mean that officials will torture and not be prosecuted or, in a system like that of the U.S., be able to escape criminal liability via jury nullification. The Benvenisti article I had in mind likewise puts all of the risk on the official.

2) I do mean to elevate my own moral intuitions, not because I'm among the human rights idolators but because they are MY intuitions, albeit those that survive in reflective equilibrium. The contrary intuitions of others--whether the cognoscenti or the hoi polloi--are of interest to me in examining my own views, but I don't give them any epistemic deference simply because of the (supposed) greater numerosity of those who hold them.

Ori Herstein said...

More thoughts,

From a moral point of view what is most interesting is the recognition of a need for a “safety valve” in the law. Of course it is possible that the reasons for the “safety valve” have nothing to do with certain instances of torture being moral, but I think the fact that people do bother to make a point of pointing out such “safety valves” in the jurisprudence of interrogation suggests that people feel that some such cases should not be prosecuted because they were in fact justified or unavoidable.

My reason for looking also to the intuitions of regular folk – such as me – as a barometer for assessing the intuitions of international human rights lawyers is that the latter group often tends to be rather insular and elitist, with a touch of unreflective zealous. This of course does not capture all such lawyers, and certainly not most of the academics among them (the people you mention in your post are rather terrific). But the fact that the “human rights community” tends to hold an absolutist view on torture does little to convince me. This is not to say that I do not agree with their position, but that the fact that they hold such a position is little reason to adopt it.

However, at times the fact that others think differently is an epistemic reason to change one’s own views, even if one is not convinced. This is because others may have more appropriate and superior experience, perspective, expertise, knowledge etc. I wonder if those properties may arise from a collective of individuals? Much turns I suppose on the circumstances, availability of knowledge, modes of deliberation etc. Properties I do not think “human rights lawyers” necessarily possess more of than regular folk.

michael a. livingston said...

One problem with consulting the views of "common folk" is that these are often simply the views of the elite a generation later. It was common wisdom 75 years ago that women, Blacks, and perhaps Jews were inferior to Anglo-Saxon males. Not all folk insights are like this, of course, but enough are to make one a little bit wary.

Jesse London said...

Another chain in the reasoning that might be examined whether or not Bin Laden could even be thought of as a cause of any future explosion. This is true even though he might be ticking, if even just in his own mind.

It strikes me that the reason Bin Laden was so hard to get to, and why the government claims that Al Qaeda is so dangerous, is precisely because it is a decentralized, cellular based phenomenon, rather than a conventional hierarchical group. So, it is a head scratcher why it is justifiable to torture in order to cut off one head which bears hardly any relation to whether a bomb will explode on account of an entirely independent fuse.

Publius the Clown said...

Hi, Professor Dorf--A few thoughts from my (Republican) perspective:

1) You assume that the coercive interrogation measures that the government used during the Bush years qualifies as "torture." I'm not convinced that waterboarding, stress positions, etc., are so severe as to qualify. (I believe that they're highly unpleasant, but that alone doesn't make them torture.)

2) I think that the slippery-slope argument (that coercive interrogation will become the norm if we allow it at all) is overwrought. It is certainly feasible to have clear guidelines on when to use coercive interrogation measures that fall short of an all-or-nothing standard. (The Bush administration arguably did this, to some degree, when it only waterboarded the three highest-ranking members of al Qaeda in its custody.)

3) The slippery-slope argument is appealing in part because the political discourse tends to be along all-or-nothing lines. That's unfortunate.

4) It appears that the coercive interrogation methods that the U.S. used did work to obtain at least some accurate information. That appears to refute (or at least serve as a counterexample) to the "torture"-doesn't-work argument. Whether or not the information we obtained could have been obtained without those methods is a separate question.

5) The answer to that separate question is important, and empirical rather than ideological. I don't know the answer. I don't think it's "inherently unprovable," though--you can study it by means other than counterfactual hypotheticals.

6) You assume for the sake of argument that the answer to that question is "no," and then say that it doesn't matter, because "[t]he reason not to torture is not that it doesn't work, but that it's illegal and wrong." The legal question is debatable, unless you think the John Yoo memos are legally indefensible. (Maybe you do, but in a sense it's irrelevant to the policy debate, because the law can be changed.)

But morally, I think that you're being too dismissive of the counterargument. (To keep things straightforward, I'll assume in turn that you're right to call the relevant methods torture.)

If we assume that torture permits us to obtain information from terrorists that we couldn't obtain otherwise, then we need to consider the likelihood of averting an attack against American civilians based on the information we obtain, and weigh that against our moral objections to torture.

In other words, I think you have to take a somewhat utilitarian approach to this problem, rather than your deontological approach. The deontological approach has the ever-present problem with duty-based morality: how much are you willing to sacrifice for principle? 100 people? 100,000? A major metropolitan city? Etc. (I don't think deontological approaches are always wrong, or utilitarian approaches are always right, but I think it's important to consider both approaches.)

In that sense, I think the ticking-time-bomb scenario imposes an artificial limitation. What if, absent "torture," we would never learn about a plan to detonate a nuclear bomb in the first place? That has the exact same cost-benefit scenario as the ticking-time-bomb example.

So I lean toward the position that it's OK to use, at least, coercive interrogation on, at least, known high-ranking al Qaeda members, assuming that that kind of interrogation can yield information we wouldn't otherwise obtain. I take no position on whether it's okay to use methods that I would genuinely consider to be torture.

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