37 Pages Posted: 2 Jul 2008
Date Written: July 1, 2008
Public debate about U.S. torture policy has been seriously distorted by a nearly obsessive preoccupation with the "ticking bomb scenario" (TBS). As many have noted, the TBS requires the conjunction of many improbable conditions: interrogators must know there is a ticking bomb, know that they have captured the right person, know that he knows where it is, know that he won't talk without torture, know that torture is likely to make him talk, know that he cannot hold out or give misleading information long enough for the bomb to go off, know that the torture won't kill him or render him unconscious, know that lives cannot be saved by other means (e.g., evacuating the building). Given the vanishingly slight probability of all these conditions being met, why do we still act as though the debate about torture is little more than the debate about ticking bombs?
This paper does several things. First, it argues that one likely reason for our preoccupation with the TBS is that we may have vengeful or hateful feelings toward the captive, and we conflate the desire for retribution with the desire to save lives through intelligence gathering. Second, it examines three supposed real-life examples of the TBS, and shows that they are at best disputed and at worst outright urban legends. Third, the paper tries to explain why torture is worse than other forms of political violence, justifying a more rigorous prohibition against torture.
The remainder of the paper is philosophical, discussing the ethical and meta-ethical assumptions behind the TBS. My vehicles are Henry Shue's pioneering 1978 paper on torture and his more recent revisiting of his 1978 approach. The present paper explores Shue's dictum about why the TBS is the wrong focus of discussion ("there is a saying in jurisprudence that hard cases make bad law, and there might well be one in philosophy that artificial cases make bad ethics"). By distinguishing four possible meaning of this dictum, the paper argues that the most compelling is the view that "the unthinkable" is an important moral category that we disturb at our peril, and that the TBS, by presenting a cartoonish hypothetical as though it were reality, aims to convert a moral choice into a stylized brain-teaser and thus to efface the boundary between the thinkable and the unthinkable.
Keywords: torture, ethics, moral choice
Suggested Citation: Suggested Citation
Luban, David J., Unthinking the Ticking Bomb (July 1, 2008). Georgetown Public Law Research Paper No. 1154202. Available at SSRN: https://ssrn.com/abstract=1154202 or http://dx.doi.org/10.2139/ssrn.1154202