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."

The Day the Unthinkable became a Reality – A 9/11 Remembrance

The Day the Unthinkable became a Reality – A 9/11 Remembrance

So many of us will never forget where we were when the news came. My husband and I awoke to a phone call from his brother around 6:00 a.m. and I immediately thought, “Someone must have died.” I was right, of course, but not in any way I could have expected or even imagined.

I remember turning on the TV to see the first plane explode and the first building collapse, and I felt as if someone had knocked the wind out of me. “I don't want the kids to see this,” I said turning to my husband, already knowing that this was not only a tragedy but a potential media spectacle.
Recalling how I felt that morning I can't help thinking of Auden's lines:

About suffering they were never wrong,
The Old Masters; how well they understood
Its human position; how it takes place
While someone else is eating or opening a window or just walking
dully along.

I was sleeping peacefully when people leaped out of windows or called loved ones to say farewell or raced up stairwells to try to save people, and that realization makes me feel strangely guilty and yet lucky at the same time as I think, “There but for an act of fate, go I.”

That morning except for the eerily silent skies—no planes were passing overhead-- we determined to go on as normally as we could. I drove the kids to school, I met a friend for lunch as we had planned, my husband went to work. It was only later after we put the kids to bed that we turned on the television and watched and wept.

America lost more than thousands of lives on 9-11. We lost our innocence and our sense of invulnerability from foreign attack in a way more palpable than any experience since Pearl Harbor.

Many people resolved that such an attack would never happen again on U.S. soil, but I don't believe we can prevent every act of terrorism from occurring, whether it results from the actions of another domestic terrorist like Timothy McVeigh or a foreigner like Mohamed Atta.

Yet I do believe that we can do a great deal more to honor those who have lost their lives, and not just by building another memorial, or reciting a list of names, or standing together in a moment of silence.

Those are all honorable acts, but we are capable of a more profound form of remembrance if we take every opportunity to teach our children not only what happened on September 11th but how strongly we must strive to prevent religious extremism or racial, tribal, or ethnic prejudice from allowing us to forget our common humanity.

The terrible acts of September 11th, 2001 were not simply a strike against Americans but against every citizen of the world. They made the unthinkable a reality, and they diminished our sense of our own decency and regard for the sanctity of every living person. If we take this anniversary as an opportunity to affirm those values as a global community, we can make no better tribute to the lives of those we lost on this day seven years ago.

The FISA Catch-22

The FISA Catch-22

Tonight Congress meets in a secret session to try to work out a compromise between the Senate version of legislation on FISA that would give telecommunication companies immunity from prosecution for their cooperation with the government despite the lack of authorizing warrants, and a House version that strips that retroactive immunity from the bill.

President Bush insists that such immunity is necessary to ensure that telecommunications companies cooperate with the government in future terrorist investigations. According to the President: “Companies that may have helped us save lives should be thanked for their patriotic service, not subjected to billion-dollar lawsuits that will make them less willing to help in the future,” (“A Transcript of Bush Remarks on FISA,”The Washington Post, March 13, 2008.

This argument would carry more weight if the same Bush Administration were willing to reveal more about what citizens they encouraged telecommunications companies to spy on and why. But according to the White House, to do so would risk compromising “state secrets.” The American public, according to President Bush, should accept the White House's assurance that no one's privacy was unduly breached, no one's civil liberties trampled upon, and that every bit of spying was done purely in the interest of protecting Americans from terrorist attacks. The telecommunication companies who facilitated the spying are “patriots” -- any citizens who object to having their phone calls or email reviewed without a warrant are by implication unpatriotic and obstructionist, selfishly rendering other citizens less safe by their insistence that terrorist investigations be pursued under a system of judicial review.

The American public may be forgiven for questioning the White House's credibility on these assertions given its questionable record of finding “terrorist” threats from Saddam Hussein's alleged weapons of mass destruction to Jose Padilla's alleged plot to detonate a “dirty bomb” on U.S. Soil to the cases of mistaken identity that have rendered innocent men for torture and imprisonment in countries like Syria and Afghanistan.

In any case, whether or not these “warrantless” wiretaps were justified or not, is something we will never know until a full investigation is made, and that can only happen through an open government investigation or through class-action lawsuits. The catch-22 inherent in the legislation that the Bush Adminstration wants, according to Judiciary Committee Chair John Conyers puts Congress in an impossible situation. According to Conyers, Congress “can't immunize against that which we do not know what it is we are granting immunity for,” (“Immunity Issue at Center of FISA Fight,” Morning Edition, NPR, March 13, 2008).

One of Americans' most fundamental Constitutional rights is the right to remain free from unreasonable search and seizure. Surely those Americans who fear that their Constitutional rights have been violated in this way deserve their day in court to determine at the very least whether or not their phone calls and electronic communications were monitored and why.

The Bush Administration has also failed to provide compelling evidence why the current FISA law, which allows warrants to be issued retroactively, cannot answer its needs to investigate and prevent terrorist plots. President Bush calls the current FISA structure “ a cumbersome court approval process that would make it harder to collect intelligence on foreign terrorists,” but he provides no hard evidence that the FISA law has impeded terrorist investigations in any way, and journalistic investigations of the actions of the courts implementing the FISA law suggest that very few requests for warrants are turned down.

So why the rush to secrecy and to retroactive immunity? Are we really protecting the American public from the threat of terrorism? Or are we protecting an administration that has repeatedly bungled terrorist investigations and sought to aggrandize executive power and to refuse any kind of oversight by the other two branches of government? Do we really believe that immunity for telecommunications companies has more to do with national security than with the potential for embarrassing revelations about just how much spying our government has engaged in with regard to innocent, law-abiding citizens who have nothing to do with terrorism whatsoever? We'll never know the answer unless Congress sticks to its guns and demands accountability from an administration that considers itself answerable to no one.