Page | 1 The Little Door to Hell - Torture and the Ticking Bomb Argument by Filip Spagnoli (draft - please do not use without permission) Brussels, March 26, 2009, revision: August 22, 2011 The Little Door to Hell - Torture and the Ticking Bomb Argument | Filip Spagnoli Electronic copy available at: http://ssrn.com/abstract=1407517 Page | 2 Table of Contents 0. Introduction 1. What is torture? 2. What is the ticking bomb argument? 3. Assumptions of the ticking bomb argument 3.1. Assumption 1: A real-life case 3.2. Assumption 2: Knowledge and knowledge about knowledge 3.3. Assumption 3: It works 3.4. Assumption 4: No alternative 3.5. Assumption 5: Exceptional 3.6. Assumption 6: The Greater Good 4. Conclusion References The Little Door to Hell - Torture and the Ticking Bomb Argument | Filip Spagnoli Electronic copy available at: http://ssrn.com/abstract=1407517 "We cannot torture because of who we are". 1 Page | 3 Michael Ignatieff "If torture is the only means of obtaining the informa- tion necessary to prevent the detonation of a nuclear bomb in Times Square, torture should be used - and will be used - to obtain the information. ... no one who doubts that this is the case should be in a position of responsibility." Richard Posner 2 "During numerous public appearances since Septem- ber 11, 2001, I have asked audiences for a show of hands as to how many would support the use of nonle- thal torture in a ticking-bomb case. Virtually every hand is raised." Alan Dershowitz 3 0. Introduction The most astonishing by-product of the events of 9-11 is undoubtedly the renewed legitimacy, in the eyes of many, of some forms of torture. Since many centuries, the most brutal dictators have felt the need to lie and deceive about their torture prac- tices, and now we have political and intellectual leaders of the free world openly arguing in favor of the use of torture in certain cases. The most commonly cited of these cases is the one described in the so-called "ticking bomb argument" (hence- forth TBA). The kind of torture that is supposedly justified by this argument can be characte- rized as benevolent torture, well-intentioned torture, or even moral torture because it is different from torture as it is commonly used by certain oppressive or authori- tarian governments. "Ticking bomb torture" is not a method of terrorizing and sub- jugating a population, and neither is it a form of criminal punishment or a means of establishing innocence or guilt. On the contrary, its declared purpose is to protect the population and to avoid a terrorist attack on civilian targets. It is benevolent tor- 1 In Rebecca Evans (2007), The Ethics of Torture, in Human Rights & Human Welfare, Vol. 7. 2 In The New Republic, September 2002. 3 Alan Dershowitz (2002), Why Terrorism Works, Yale University Press, New Haven & London. The Little Door to Hell - Torture and the Ticking Bomb Argument | Filip Spagnoli ture because its objective is not fear or punishment, but safety and security. It is moral torture because reluctance to engage in it would endanger the lives of inno- cent civilians, and would therefore be immoral. "A society that elects to favor the interests of wrongdoers over those of the innocent, when a choice must be made be- tween the two, is in need of serious ethical rewiring".4 Page | 4 Proponents of the TBA readily agree that they discuss an exceptional case which is unrepresentative of torture in general - most real cases of torture have absolutely nothing to do with the example given in the TBA or fail to conform to the hypo- theses present in the TBA - and which in no way justifies torture that has other, and less benevolent purposes. Yet they believe that this exceptional nature of the case does not render it insignificant or irrelevant. In the setting of a "war on terrorism", it can be extremely important to agree on the soundness of the TBA because no matter how exceptional the case may be, when it occurs it has important conse- quences. A clear agreement on the TBA is necessary in order to save many lives in exceptional cases. I will argue in this paper that the TBA is fundamentally flawed because it is based on a number of untenable assumptions. Moreover, I argue that the TBA, when thought through until its logical conclusions, ends up condoning torture of a much less exceptional and benevolent nature than the torture it started with. In other words, the TBA proves too much. It would not only put us on a "slippery slope" towards ever increasing levels of torture, but also destroy our democracy and free- dom. It is, in the words of the title of this paper, the little door to hell. The TBA tries to force a small opening into an area of human activity that is shielded by a very strong, and perhaps even absolute moral5 and legal6 taboo, and then finds that it has allowed this activity to take over civilization. 1. What is torture? I'll first present a short, operational definition of torture.7 Torture is x The intentional and non-accidental infliction of severe physical - and in some cases mental - pain or suffering8 by one person on another, non- 4 Mirko Bagaric, in The Age, May 17, 2005, http://www.theage.com.au/news/Opinion/A-case-for- torture/2005/05/16/1116095904947.html. 5 Jeremy Waldron, What Are Moral Absolutes Like, Lecture presented at the Annual Lecture for the Harvard Philosophy Club, Cambridge, Massachusetts, April 2011, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1906850 6 See the United Nations Convention Against Torture: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture", (article 2), http://www2.ohchr.org/english/law/cat.htm. 7 Based loosely on the Stanford Encyclopedia of Philosophy lemma on torture, http://plato.stanford.edu/entries/torture/. The Little Door to Hell - Torture and the Ticking Bomb Argument | Filip Spagnoli consenting and defenseless person who may or may not be guilty of a crime. x While assuming complete control over the victim's body and autonomy. x With the purpose of x extracting information (forward-looking) or a confession (back- Page | 5 ward-looking)9 x and/or punishing or degrading the victim x and/or coercing the victim to act in a certain way or believe cer- tain things x and/or terrorizing, intimidating, pacifying or oppressing the vic- tim and/or the wider society. This definition is compatible with, although somewhat wider than, the definition offered in the United Nations Convention Against Torture: "Torture is any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a male or female person for such pur- poses as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suf- fering is inflicted by or at the instigation of or with the consent or acquies- cence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or inciden- tal to, lawful sanctions".10 These definitions exclude, at first sight, acts of self-defense, masochism or other types of consensual violence, violent acts between combatants in the course of war, "collateral damage" or accidental injuries to civilians in the course of war, some forms of atomic warfare, some forms of corporal punishment and possible other ac- tions as well. Although these actions are not, according to the definitions given above, cases of torture, they may be morally wrong, and perhaps even more so than torture. However, none of this is uncontroversial, and I accept that the definition of torture as described here can be criticized. Nevertheless, I would ask the reader to accept this definition on face value and temporarily, for the duration of my argu- ment. The purpose here is simply to offer a workable definition, not to enter into a philosophical argument on the nature of torture. Such an argument is obviously ne- cessary - especially given the recent attempts, for instance by the Bush Administra- tion, to narrow down the concept of torture in such a way that many acts normally considered to be torture, would become admissible11 - but I consciously sidestep it here because it would distract from the main objective of this paper. 8 An example of mental suffering is a mock execution. 9 See David Luban (2005), Liberalism, Torture, and the Ticking Bomb, in Virginia Law Review, Vol. 91, p. 1436, http://www.virginialawreview.org/content/pdfs/91/1425.pdf. 10 http://www2.ohchr.org/english/law/cat.htm. 11 Take for instance John Yoo's and the Justice Department's infamous definition of torture: "Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such The Little Door to Hell - Torture and the Ticking Bomb Argument | Filip Spagnoli 2. What is the ticking bomb argument? 12 Page | 6 The TBA has been put forward and defended by many writers and politicians, hence there are many versions. However, they all start with a description of a very particular type of terrorist attack: a ticking bomb has been hidden in a densely po- pulated area and will soon kill thousands or millions if not disarmed, and the au- thorities have captured a terrorist who has either hidden the bomb himself or knows where it has been hidden.