Torture: The Ticking-Bomb Fallacy

Most defenders of the use of torture use the ticking-bomb argument to rationalize its employment. It is a false premise.

First, as far as we know, there has not been any truly ticking-bomb situation since Sept. 11, 2001, so why rationalize all the torturing that’s gone on to date, or a continuation of the practice with that rationale? Because it might disclose a ticking bomb? In one case, waterboarding went on over a hundred times over a prolonged (many months) period. The ticking bomb would have exploded if it were truly ticking. The idea of the ticking bomb is that we know it is about to go off, and seriously hurt people — not that it might be the case; let’s see.

All laws and practices must be designed to cover general situations. That principle covers torture, too. In all cases — including torture — there could be situations where general rules do not or should not apply. Then, either exemptions are found or laws are violated and either condoned because of the extenuating circumstances, or people are punished for the violation.

Assume arguendo that any interrogation is warranted to avoid an extreme, out-of-the-ordinary situation — a repeat of Sept. 11, or the murder of our families, as the advocates like to argue. There are references in civil and criminal law that would provide guidance for this unusual situation.

In civil law, civil disobedience is the word applied where a general law is violated for a higher purpose. The Rev. Martin Luther King Jr. went to jail for trespass. No one, civil rights advocates included, argued that civil disobedience should be legal. By definition, it is not. Martin Luther King went to jail, made his point, and no-trespass remains the law. In unusual cases, civil disobedience was not punished because of the extraordinary circumstance involved. Not swearing an oath for religious reasons, for example.

In criminal law, juries sometimes nullify the application of a good law to take into consideration extenuating circumstances. Or defenses to an otherwise criminal act may apply. Arson is against the law, for example. But the law permits burning a building to halt the spread of fire. Understanding that there could be a need to burn a building does not mean that arson in all other instances is not a crime. No one argues in that situation that the crime is not a crime — only that the general rule shouldn’t apply when an extraordinary situation arises, in fact not in theory.

So too with torture. We can have a sensible and civilized law against torture, as we do, and hold our law enforcers to it. Should a true ticking-bomb situation arise, I doubt anyone who disobeyed the law in that specific instance would be punished; and if he or she were convicted, it would be a moral act as Martin Luther King’s and others’ comparable law violations were. But torture in other situations would remain an immoral and illegal act.

Society need not operate with a law that is aimed to cover the hypothetical extraordinary situation but which is used to justify ordinary real ones. The ticking-bomb rationale is a diversion.

This is the sixth in a series of articles on the subject of torture.

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