Talk about a “Stale Debate” - Why we Need to Stop Arguing about the “Ticking Bomb” Scenario

One thing is clear in the aftermath of President Obama's release of the so-called “torture” memos: those who wrote these memos and their apologists want to frame the debate as one in which torture saved the world from terrorism. Vice-President Cheney has called for the release of the information gathered by practicing these techniques, alleging that this will prove that the ends justified the means.

Of course, one cannot prove that a terrorist event that didn't take place was definitively related to the gathering of such information or that such information could not have been garnered by other means. We're still left with a putative connection between evidence and and something that might have happened as a result, and those connecting the dots have a vested interest in turning that connection into a narrative of the world saved by a last minute necessity, however brutal or indefensible in any other circumstances.

Behind all of these justifications for resorting to torture lies the specter of the “ticking bomb.” In this hypothetical and highly unlikely scenario, a terrorist who is directly responsible for the setting of a ticking bomb refuses to tell authorities where the bomb is. At that point, some argue that torture is justified to get this information and save the lives of those in harm's way. Those who make this argument as a defense of the Bush Administration's torture policies may believe this to be true or they may simply want to sway public opinion in their favor before they end up as defendants themselves.

Unfortunately, many Americans tend to buy the “ticking bomb” scenario because it's the plot behind just about every Hollywood action flick in which the seconds tick off and the bomb is stopped just in time, usually through the violent intervention of the hero. The popular TV series 24 relies explicitly on the appeal of the “ticking bomb” plot. The world is saved and the hero's vigilante actions demonstrate that in the world of terrorism the ends justify the means.

But real life is not at all like a Hollywood action flick as police officers can tell you when they have to sort out real bomb threats from pranksters or attention seekers. And the perpetrators of terrorist acts like the mentally handicapped woman who was induced to become a suicide bomber in Iraq can also be victims of terrorist plotters just like those who died as a result of her suicide bombing.

In addition, mistaken identity can lead to terrible consequences as a German citizen, Khaled al-Masri, can attest after he was apprehended by US authorities who thought he was a terrorist. US authorities then used the principle of extraordinary rendition to send him directly from Kennedy Airport to be tortured and jailed in a Syrian prison until Condoleeza Rice intervened to order his release.

But the main problem with debating the “ticking bomb” scenario is that it is all about debating unprovable outcomes. We can't prove that authorities will never face the perfect ticking bomb situation, and those who believe that torture is never justifiable under any circumstances can never prove that alternate methods would result in extracting the same information that torture could produce. (For an excellent analysis of this scenario, see Gary Kamiya's article in Salon).

However, we can take as a given that under the ticking bomb scenario, someone will act to stop a terrorist. We witnessed this in the closest thing to a real ticking bomb scenario the U.S. has experienced, namely, when the passengers on Flight 93 realized that the airplane they were flying on was intended as a suicide bomb. The initiative they took to stop that bomb at the expense of their own lives demonstrates that both courage and common sense can prevail in such extraordinarily dangerous circumstances. Nor would we blame the military if they had been forced to shoot down that plane before it could crash into the White House or other buildings in Washington D.C.

Yet what we should be debating far more seriously than these extraordinary circumstances are the effects of policies that give legal authority to use methods explicitly outlawed by the Geneva Conventions, whether you call them “enhanced” interrogation techniques or torture.

How do we protect our own soldiers from being tortured when we use such methods against others? Do we really think that our enemies are going to distinguish between a soldier and a military combatant or even a civilian who ends up in the wrong place at the wrong time?

What will we do with the prisoners at Guantanamo who were tortured? If they are dangerous, we should be reluctant to release them, but under what pretext can we continue to detain them when our legal system requires that they be charged and tried even at this late date? Yet how can we try these prisoners when the evidence against them has been extracted by torture and will not be admissible in any serious court of law? We know that those who are tortured will say anything to stop the pain; therefore, we can never fully rely on the validity of what such prisoners say under duress. Indeed, after such treatment, it is unclear whether those who were tortured are even mentally fit to stand trial.

In fact, the information gathered by torturing Al Quaeda leaders like Abu Zubaydah often blurred the distinction between real threats and imaginary alarms as much of the information he gave led to unnecessary and expensive surveillance of American landmarks like the Brooklyn Bridge, the Statue of Liberty and even large malls when no real threat existed. Ask any American if s/he is really worried about our being at “orange” alert level, and you realize how dangerous the dissemination of bad information can be in lulling Americans into a false sense of security, and no one yet knows or has acknowledged how much useless information was tortured out of individuals along with information that had some value.

But the real problem with the torture memos is that the United States traded a potential short-term gain for vastly more negative long term consequences. If the real goal of our government is to stop terrorism, we have instead prolonged and strengthened the impetus towards terrorism by our actions. Every act of torture recorded by the Red Cross, every photo of a prisoner at Abu Ghraib, every case of mistaken identity that ended with in the abuse of an innocent person has served as a recruiting poster for Al-Qaeda and other terrorist organizations.

Yes, we have not experienced an act of terrorism on U.S. soil, but in the interim the incidence of terrorism around the world has risen significantly since 9/11, even as respect for and cooperation with the U.S. government has plummeted.

Worse, by giving up on our Constitutional principles and respect for the rule of law, the United States has abandoned the ethical in high ground that gave hope to millions around the world who look to the U.S. as a defender of laws and of human rights. That makes it much much harder for the United States to condemn the actions of a Russia or a China against its own citizens when those actions can so easily be coded as acts to prevent “terrorism” whether in Chechnya or Tibet.

The Obama Administration has taken an important step in rectifying the United States's past mistakes by making the torture memos public. But this is only the first step, and much more remains to be disclosed before we can close the door on this sordid chapter of our history.

What we should do now is stop debating whether or not torture is ever necessary and start recognizing the ways our practice of torture has already damaged our national security and our relations with the rest of the world.

We remain a signatory to the Geneva Conventions, but it will be a long time before the rest of the world trusts us to uphold them. We need to start building that trust now by repudiating torture in the strongest and most unequivocal terms.

The Obama Administration is trying to steer a middle course between letting bygones be bygones and taking on a full-scale prosecution of those who committed torture by bringing past practices to light but not taking legal action against the perpetrators. That is understandable given the President's inherent pragmatism and the enormous challenges he faces domestically that will require the cooperation of Republicans in Congress.

But that does not mean that the Justice Department and Congress itself need follow this course. For example, Congress has the ability and the right to impeach Judge Jay Bybee who signed two of these memos. Senator Carl Levin has stated: "I really think it's important that the Justice Department make the decision as to who, if anybody, is prosecuted here,” adding that it is his personal opinion “that the legal opinions here were abominations,” ("Congress: Who's Accountable for Torture Memos?" Morning Edition, April 23, 2009).

If the United States wants to demonstrate to the rest of the world that we truly are a nation of laws, we should let our own rule of law take its course and bring those responsible for these memos to justice, according them the basic human rights they so easily denied to those who were brutally treated as a result of their perverse interpretation of our Constitution and our common understanding of what constitutes “torture."