Torture the Ticking Bomb Terrorist?

A CRITICAL RESPONSE

to

Alan M. Dershowitz’s Should the Ticking Bomb Terrorist be Tortured?

It seems that Dershowitz’s justification of torture is largely founded on the notion that if we are to embrace our general belief that civil liberties may be forgone in certain circumstances to preserve public safety, then this should also apply to instances where torture is necessary, despite our instinctual aversion to torture. While he effectively contrasts these two intuitions, it is not so convincing why it is the latter that ought to be abandoned. 

His comparison of torturing the ticking bomb terrorist with the shooting of a fleeing felon fails to recognize the differing objectives of violence and their implications. Shooting the fleeing felon is a direct counteraction to the threat he demonstrably poses in his current state. The terrorist, having been arrested and now being held in custody, poses no such threat that can be thwarted by a force against him. Violence directed towards the terrorist in the “ticking bomb scenario” is coercive rather than defensive. This poses a problematic disparity, as for the fleeing felon to be spared he must only stop and surrender, whereas the terrorist’s fate relies on his knowledge - which we cannot be certain that he possesses. Though it may betray the parameters of the hypothetical, we must consider the case where the terrorist actually does not know where the bomb is (him being innocent, suffering amnesia, etc. are possibilities in the real world, the same one that Dershowitz often relates to), and thus must either lie or be doomed to prolonged agony and potentially lasting psychological trauma. While Dershowitz criticizes case utilitarian arguments for lacking an “inherently limiting principle”, it is unclear under his analysis what would limit the torture when the desired information does not or cannot come forward. At what point does it end? When violent force is used to entice one to perform an action (such as providing information), unlike when it is used stop or prevent performing one (such as in the case of a fleeing felon), those who lack the ability to perform said action have no legitimate means to avoid it. 

Asking whether we may justify torturing a terrorist who knows the location of a bomb is akin to asking “Is it justifiable to sentence the death penalty to a murderer we know is guilty?” While it may be in that instance, absolute certainty is rare, and allowing it then establishes a dangerous precedent (that has actually resulted in many wrongful executions). And while torture is of a lesser magnitude than execution, we should reasonably expect a far greater degree of uncertainty that the ticking bomb terrorist has been correctly identified than the death row candidate. Given that wrongful executions have occurred following a trial and years of appeal processes, surely the margin of error would be dramatically increased in an extremely time sensitive “ticking bomb” scenario, for which Dershowitz’s contends a mere warrant should be sufficient.