When torture is the least evil of terrible options

June 11, 2004

The US's refusal to openly debate the possibility of non-lethal torture led to the abuses at Abu Ghraib prison, argues Alan Dershowitz.

Is it possible to engage in a rational discussion about the potential use of non-lethal torture in the ticking-bomb terrorist case? Or is it inevitable that anyone even suggesting that the issue should be open to debate - especially since the publication of photographs of Americans abusing Iraqis held in the Abu Ghraib prison - will be accused of violating an important taboo against saying anything that might legitimate so barbaric a practice?

In the aftermath of the September 11 2001 terrorist attacks, I tried to begin a debate about whether the law should authorise the issuance of non-lethal torture warrants in extraordinary cases in which it is relatively certain that a captured terrorist has information that would prevent an imminent terrorist attack causing mass casualties.

I took no normative position on whether non-lethal torture should be justified under such extreme circumstances, but I did assert that I believed that any democracy would employ non-lethal torture as a last resort (if all other inducements and techniques short of torture had failed). I then argued that if torture were to be employed, it would be better (or, more precisely, less bad) for there to be a warrant requirement as a prerequisite for any use of such an abhorrent tactic. A warrant requirement would impose political accountability on whoever was empowered to authorise the torture. In the US, for example, the warrant would have to be issued by the President, the Secretary of Defence or the Chief Justice of the Supreme Court. Such public accountability would, in my view, reduce the chances that torture would ever be authorised except in a truly extraordinary situation - a situation that has not yet arisen, to my knowledge, and may never arise. But because the ticking-bomb terrorist hypothetical is commonly used as an excuse for why intelligence agents should retain the discretion to torture as a last resort, and because such a case is now feasible, it is important to discuss and decide in advance what the proper response should be.

My interest in this issue grows out of many years of teaching about "choice of evil" problems. The three classic situations that pose these tragic choices are the crying-baby case (during the Holocaust, Jews hiding from Nazis had to decide whether to silence crying babies); the hijacked passenger plane case (a hijacked jet is heading towards a crowded high-rise building, and an immediate decision must be made about whether to shoot down the jet to prevent it from crashing into the building); and the torture of the ticking-bomb terrorist to prevent mass casualties.

Each case is designed to present a situation in which there is no good or right answer - only bad, worse, worser and worst answers. Students hate these problems because they are accustomed to choosing among good, better or best solutions. They try desperately to avoid having to pick a bad answer, seeking instead to sidestep the need to choose. (Can't you just tranquillise the baby? Can't the building be evacuated? Won't truth serum produce more information than torture?) When I lock them into the hard choices presented, the students generally disagree among themselves. Some insist on applying absolute principles - never kill innocent people! Never torture! Others choose the utilitarian option - save as many lives as possible.

Recent research with brain-imaging techniques suggests that different parts of the brain may be involved in these decisions, depending on whether the issue is presented in more rational or emotional terms. According a recent report in The Boston Globe , subjects were presented with several variations on a classic problem: "A runaway trolley is headed towards a group of five people on the track. Is it acceptable to flip a switch and divert it so that it hits one person? (Most people say yes.) That dilemma activates more of the reasoning areas of the brain; the following problem lights up more social-emotional areas. The same trolley is on its way towards the group of five. Is it acceptable to push a man off a bridge so that he lands on the tracks and blocks the trolley? (Most people say no: the act of pushing feels too much like murder.)" A similar reaction occurs with the crying-baby case. "When confronted with this dilemma, people often respond first with primitive, emotional parts of the brain. The thought of killing the baby repels them. Then, however, the more advanced, later-evolved brain areas associated with higher-level thinking, such as the prefrontal cortex, may kick in; after all, there is no advantage to sparing the baby; she will be killed by the soldiers anyway."

The word "torture" also creates highly emotional responses - more so even than "death" or "execution". Although I am aware of no brain-imaging done with regard to torture, a poll taken after the disclosure of the photographs taken at the Abu Ghraib prison showed that 63 per cent of Americans say that torture is never acceptable, even if a suspect is believed to have knowledge of an imminent terrorist attack. Yet 71 per cent of Americans generally favour the death penalty and 76 per cent support it for terrorists. The reason for this difference is not solely the fact that the person to be tortured is merely a suspect whose information might prevent a terrorist attack, whereas the terrorist to be executed has been convicted of murder. Even if we could hold constant every fact except for the torture vs execution variable, it is likely that at least some Americans who favour the death penalty would still oppose torture. For example, if a convicted terrorist who has been sentenced to death had information that would prevent a terrorist attack, some Americans would favour his execution by lethal injection but not his non-lethal torture.

This may make little sense rationally, but it points to the highly emotive nature of the word "torture".

It would be interesting to conduct a trolley experiment involving death vs torture. The subjects who were willing to flip the switch so as to kill one rather than five would next be asked whether they would flip the switch so as merely to injure, rather than kill, one person in order to save five lives. They would all probably say yes, because death is worse than injury.

Then they would be asked, what if the injury were very painful and had to be inflicted by a torturer? I bet that a considerable number who approve of killing one to save five would still refuse to approve of non-lethal torture. To bring the trolley hypothetical even closer to the torture problem, the facts would have to be changed so as to make the person who is to be tortured not an innocent bystander but rather someone responsible for having disabled the brake in order to kill innocent people - a terrorist.

How many people would then prefer to kill one innocent person, rather than to torture one guilty terrorist non-lethally, to save five other innocent people?

Some might argue that any compromise with the absolute prohibition against torture, even in the most extreme situations, would lead down the slippery slope to making torture routine, as it apparently became in Abu Ghraib. I would argue that the opposite is true. Abu Ghraib occurred precisely because US policy consisted of rampant hypocrisy: our President and Secretary of Defence publicly announced an absolute prohibition on all torture, and then with a wink and a nod sent a clear message to soldiers to do what you have to do to get information and to soften up suspects for interrogation. Because there was no warrant - indeed no official authorisation for any extraordinary interrogation methods - there were no standards, no limitations and no accountability. I doubt whether any President, Secretary of Defence or Chief Justice would ever have given written authorisation to beat or sexually humiliate low-value detainees.

I worry less about the precedent that might result from a narrow ticking-bomb exception to the prohibition against torture than I do about the precedent that has already been established by most democratic nations - including my own - which follow the way of the hypocrite, namely by condemning torture in public, while practising it in private. The best check on abuses in a democracy is open accountability.

Alan Dershowitz is a professor of law at Harvard University. His latest book, America on Trial , is published by Warner Books.

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