David Luban in "Liberalismus und die Verführing zur Folter" Kursbuch 163/Mar 2006 writes about the danger of trying to establish some stable legal basis for practicing torture. It is translated from the essay which appeared as "Liberalism, Torture and the Ticking Bomb" in Karen Greenberg, ed., The Torture Debate in America (2006). I'll be quoting from several pieces from that issue of Kursbuch in other posts.
I won't try to summarize Luban's entire long argument in this post. But the essence of it is that the notion suggested by some that torture can be allowed in limited circumstances by having it carefully regulated and without endangering the rule of law, like Alan Derschowitz' idea of a "torture warrant", is a dangerous illusion. The "liberalism" of his title refers to classical liberal political theory on which the US Constitution is based, not to the liberal/conservative definitions used in American politics.
Stephen Holmes in the same issue (and also in Greenberg's Torture Debate in America) argues that the "ticking time bomb" scenario makes a popular ideological argument for those who support torture because, for one thing, it takes it out of the long historical debate condemning torture for investigation of crime by putting its justification into an unknowable historical future. The torturer isn't asking the victim to confess a crime committed in the past, but to force him to help prevent a crime not yet committed. Since fears of the future can be open-ended, some hideous hypothesized threat in the future is an open-ended justification for torture. And in the Cheneyist vision of government by open-ended fear, it becomes a justification for torture as a permanent practice.
Luban points out that within the classical liberal concept of the state, the ticking-time-bomb argument has a certain appeal. He doesn't cite Jeremy Bentham's concept of the greatest good for the greatest number. But the ticking-time-bomb torture justification is a perverted form of it. In general it's wrong to inflict cruelty on people, the argument goes. But in order to save the lives of thousands menaced by that ticking-time-bomb, the pain of the torture victim is a trade-off for the greater good.
Luban makes a focused argument about the problem of trying to limit torture to very specific practices and situations by explaining the real-world requirements that to have a torture program, you have to have a torture culture, which involves having a supply of experts and specialists in the practice of inflicting pain on individual victims. Even without the torture memos released in 2009 at his disposal, Luban used the ones that were in the public record at the time he wrote to show that the seeming specificity in them was false. The ticking-time-bomb argument itself assumes that the situations which justify torture in the eyes of its advocates assume those are situations in which the normal rules of society and civilized social behavior have to be set aside. In the actual practice of torture, the hands-on torturer will find himself confronted with nuances of the torture experience not spelled out in those seemingly comprehensive memos. And the mentality of the ticking-time-bomb ideology will tend to validate the notion of pushing beyond them.
The ever-perceptive Tom Tomorrow provides us a darkly satirical look at the extent to which our media and political establishments have absorbed a "torture culture" in Look what happens when Dick Cheney makes a startling admission! Salon 06/02/09.
We now know that the real existing torture practices of the Cheney-Bush torture program in fact went beyond those seemingly highly specific conditions "permitted" under the Mob-lawyer-style legal opinions on which that administration relied. And there is more than the dubious source of Colin Powell's assistant Larry Wilkerson that give us reason to believe that Dark Lord Cheney used the torture program to produce false information needed for his pre-Iraq-War propaganda, not "only" to look for those "ticking time bombs".
Luban's article analyzes the torture memos to which he had access in some detail, showing the painfully and obviously faulty legal reasoning in them. He also looks at some of the sophomoric arguments that can be easily built on the ticking-time-bomb idea, and inevitably will be. This is not a matter of the fabled "slippery slope". The more appropriate metaphor here is falling off a cliff. Once torture is accepted as an acceptable tool of the state, a basic element of the rule of law has been discarded. The torture culture that has to be built up around it will find more and more situations to include as ticking time bombs.
In any case, the torture of accused terrorists in the Cheney-Bush program was not literally about ticking time bombs about to go off. The idea is that any information that the torture victims might yield about "Al Qa'ida" might help in some way to foil some plot that might be in some stage of development. That is already a radically different situation than a huge bomb about to go off in an hour in a highly populated area.
Luban also provides an historical survey of the pre-liberal (i.e., pre-Enlightenment) justifications for torture: as a privilege of military victors; as state Terror; as punishment for crimes; and, to induce confession of crimes. He argues that the classical liberal notions of democracy and rule of law reject the legitimacy of those justifications. The US Bill of Rights expresses that outlook in the third and fourth instances, by banning "cruel and unusual punishment" and providing for the right against self-incrimination. The ticking-time-bomb ideology for torture doesn't explicitly challenge any of those well-established taboos of classical liberalism. And for that reason, Luban cautions, it can have a certain seductive appeal to those willing to accept the illusion that a torture culture can be limited within bounds that don't threaten social or the underlying rule of law.
Tags: establishment press, david luban, torture
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