Memo For File XXVI
David Luban is a professor at Georgetown University. Last summer he wrote a treatise assaulting the practice of torture which, for hundreds of thousands of liberals, has showcased all the arguments about why we shouldn’t be doing it. For me, his essay showcased…uh, the pun is quite unintentional…tortured logic.
Prof. Luban set out to attack the “Ticking Time-Bomb Scenario” and to show how little it benefits us to discuss this hypothetical in evaluating torture against real-world situations. Somewhere in the literary adventure, is professorly mindset got a little sidetracked, because he made a point of drawing on real-life events that proved without a doubt the validity of the scenario. Specifically, he chose — for reasons I still don’t understand — the events surrounding Operation Bojinka, the plot to attack airliners in 1995. This was a complicated plan involving an attack on the CIA headquarters, assassinating Pope John Paul II, and detonating passenger airliners over the South China Sea and the Pacific Ocean. Philippine police tortured Abdul Hakim Murad, the suicide pilot who was supposed to crash the plane into the CIA, for 67 days. This wasn’t waterboarding, it was lit cigarettes on the testes, and beatings. As Luban himself said, “Grisly, to be sure �- but if they hadn�t done it, thousands of innocent travelers might have died horrible deaths.”
Mmmmkay. If you want me to stop believing in the Ticking Time Bomb scenario, and you want to present a real-life episode wherein Ticking Time Bomb was real and worked just fine-and-dandy…twist my arm, professor.
But sometime after that, Luban wrote another article which appeared in the Washington Post, also seeking to disqualify the Ticking Time Bomb scenario. This time, someone must have reminded the Professor that when you’re trying to convince people it’s a sunny day outside, pointing out the water on the sidewalk and the gray clouds and the umbrellas everywhere — it’s probably not the right way to go. So, gone was any mention of Abdul Hakim Murad and Operation Bojinka. Prof. Luban carefully stuck to philosophy on this one, and stayed away from reality.
There are two torture debates going on in America today: One is about fantasy, and the other is about reality.
For viewers of TV shows such as “Commander in Chief” and “24,” the question is about ticking bombs. To find the ticking bomb, should a conscientious public servant toss the rulebook out the window and torture the terrorist who knows where the lethal device is? Many people think the answer is yes: Supreme emergencies demand exceptions to even the best rules. Others answer no: A law is a law, and a moral absolute is a moral absolute. Period. Still others try to split the difference: We won’t change the rule, but we will cross our fingers and hope that Jack Bauer, the daring counterterrorism agent on “24,” will break it. Then we will figure out whether to punish Bauer, give him a medal, or both. Finally, some insist that since torture doesn’t work — that it doesn’t actually unearth vital information — the whole hypothetical rests on a false premise. Respectable arguments can be made on all sides of this debate.
Real intelligence gathering is not a made-for-TV melodrama. It consists of acquiring countless bits of information and piecing together a mosaic. So the most urgent question has nothing to do with torture and ticking bombs. It has to do with brutal tactics that fall short — but not far short — of torture employed on a fishing expedition for morsels of information that might prove useful but usually don’t, according to people who have worked in military intelligence. After Time magazine revealed the harsh methods used at the Guantanamo Bay detention facility to interrogate Mohamed Qatani, the so-called “20th hijacker,” the Pentagon replied with a memo describing the “valuable intelligence information” he had revealed. Most of it had to do with Qatani’s own past and his role in the attacks of Sept. 11, 2001. Other parts concerned al Qaeda’s modus operandi. But, conspicuously, the Pentagon has never claimed that anything Qatani revealed helped it prevent terrorist attacks, imminent or otherwise.
The real torture debate, therefore, isn’t about whether to throw out the rulebook in the exceptional emergencies. Rather, it’s about what the rulebook says about the ordinary interrogation — about whether you can shoot up Qatani with saline solution to make him urinate on himself, or threaten him with dogs in order to find out whether he ever met Osama bin Laden. And the trouble is that this second debate is so wrapped up in legalisms, jargon and half-truths that it is truly hard to unravel.
So unravel it Professor Luban does…always in a way supportive of his argument. From out of nowhere, emerges the dictum that we shouldn’t be doing this, and that if & when we do, it doesn’t work.
And this November piece effectively “Google-bombed” his name. His earlier piece, which clumsily grasped at evidence damaging to his own conclusion, was virtually buried. I haven’t been able to find it.
Until now. “LIBERALISM, TORTURE, AND THE TICKING BOMB” is a book that was excerpted in the Virginia Law Review — Vol. 91, p. 1425. Professor Luban begins to make his argument about Murad on Law Review page 1442.
But look at the example one more time. The Philippine agents were surprised he survived �- in other words, they came close to torturing him to death before he talked. And they tortured him for weeks, during which time they didn�t know about any specific al Qaeda plot. What if he too didn�t know? Or what if there had been no al Qaeda plot? Then they would have tortured him for weeks, possibly tortured him to death, for nothing. For all they knew at the time, that is exactly what they were doing. You cannot use the argument that preventing the al Qaeda attack justified the decision to torture, because at the moment the decision was made no one knew about the al Qaeda attack.
The ticking-bomb scenario cheats its way around these difficulties by stipulating that the bomb is there, ticking away, and that officials know it and know they have the man who planted it. Those conditions will seldom be met. Let us try some more realistic hypotheticals and the questions they raise:
1. The authorities know there may be a bomb plot in the offing, and they have captured a man who may know something about it, but may not. Torture him? How much? For weeks? For months? The chances are considerable that you are torturing a man with nothing to tell you. If he doesn�t talk, does that mean it�s time to stop, or time to ramp up the level of torture? How likely does it have to be that he knows something important? Fifty-fifty? Thirty-seventy? Will one out of a hundred suffice to land him on the waterboard?
2. Do you really want to make the torture decision by running the numbers? A one-percent chance of saving a thousand lives yields ten statistical lives. Does that mean that you can torture up to nine people on a one-percent chance of finding crucial information?
3. The authorities think that one out of a group of fifty captives in Guantanamo might know where Osama bin Laden is hiding, but they do not know which captive. Torture them all? That is: Do you torture forty-nine captives with nothing to tell you on the uncertain chance of capturing bin Laden?
4. For that matter, would capturing Osama bin Laden demon-strably save a single human life? The Bush administration has downplayed the importance of capturing bin Laden because American strategy has succeeded in marginalizing him. Maybe capturing him would save lives, but how certain do you have to be? Or does it not matter whether torture is intended to save human lives from a specific threat, as long as it furthers some goal in the War on Terror? This last question is especially important once we realize that the interrogation of al Qaeda suspects will almost never be employed to find out where the ticking bomb is hidden. Instead, interrogation is a more general fishing expedition for any intelligence that might be used to help “unwind” the terrorist organization. Now one might reply that al Qaeda is itself the ticking time bomb, so that unwinding the organization meets the formal conditions of the ticking-bomb hypothetical. This is equivalent to asserting that any intelligence that promotes victory in the War on Terror justifies torture, precisely because we understand that the enemy in the War on Terror aims to kill American civilians. Presumably, on this argument, Japan would have been justified in torturing American captives in World War II on the chance of finding intelligence that would help them shoot down the Enola Gay; I assume that a ticking-bomb hard-liner will not flinch from this conclusion. But at this point, we verge on declaring all military threats and adversaries that menace American civilians to be ticking bombs whose defeat justifies torture. The limitation of torture to emergency exceptions, implicit in the ticking-bomb story, now threatens to unravel, mak-ing torture a legitimate instrument of military policy. And then the question becomes inevitable: Why not torture in pursuit of any worthwhile goal?
5. Indeed, if you are willing to torture forty-nine innocent people to get information from the one who has it, why stop there? If suspects will not break under torture, why not torture their loved ones in front of them? They are no more innocent than the forty-nine you have already shown you are prepared to torture. In fact, if only the numbers matter, torturing loved ones is almost a no-brainer if you think it will work. Of course, you won�t know until you try whether torturing his child will break the suspect. But that just changes the odds; it does not alter the argument.
Luban, here, has over-thought things and he’s done it pretty badly. My beef with his argument is two-fold: First of all, he’s clinging to the twentieth-century liberal mindset that knowledge equals endorsement. Remember, the United States didn’t perform the torture on Murad, the Philippines did. Luban’s twentieth century liberal dictum says if you know something, you may continue knowing it in which case you’re endorsing any and all means invoked to learn it; or, you may un-learn what you know and proceed on the premise that the thing you know to be true, is everlastingly false and cannot be re-learned under any circumstances. There is no in-between.
Our liberals won’t let us debate this. They assert, correctly in my view, that whether or not this “game of pretend” is a worthwhile exercise, is a matter not to be left to the ballot box. To them, however, this lifts the whole matter out of the sphere of debate. That we have a moral obligation to forget things we know to be true, is a premise fit only for a monolog and never for a dialog.
Excuse me, there’s a difference between declaring a subject out of the proper realm of voting, and removing it from the arena of ideas. Seems to me, if we really become a more refined and civilized culture by playing games of pretend, this doctrine should be sufficiently durable to withstand scrutiny. I just think we should talk it over. Cop knocks on the wrong apartment door responding to a domestic call, catches you growing marijuana plants — does the law really have an obligation to pretend you’re not growing pot, when the law knows damn well that you are? Really? What if the cop walked in on you carving up your wife’s body in the bathtub?
So Luban proceeds from the premise that by using the information, the United States “lowers” itself, so to speak, to the level of the Philippine authorities who extracted the information. He doesn’t say it outright, but makes several assertions that rest on this premise.
The other problem I have, is with his drift. He asks five questions about where we should go from here. Question 1 sets up a false choice, Question 2 sets up the dubious concept of “statistical lives,” Question 3 appeals to our sensibilities to be horrified at the practice of group-torture, Question 4 calls the value of the theoretical reward into doubt, for no logical reason whatsoever. By the time he gets to Question 5 we’re beating bin Laden’s pregnant sister with a metal chair.
There’s a problem with logic drift: If it’s legitimate to take it in one direction, it’s quite alright to take it in another. Can I take this another way, in order to attack Luban’s doctrine of un-learning things? That’s how the ticking time bomb came about…the bomb is ticking away, we have a suspect, lives are at stake. Luban says, you really shouldn’t torture him because at the time, you don’t know for sure he’s the guy who planted it. Okay, what if we do know this to be the case? Luban and millions of others don’t want us to waterboard. Alrighty, so we got this guy we know planted the bomb, we can’t waterboard him…and by simple extension that means we can’t make him stand for prolonged periods of time, or deny him food. Are we then “above” the practice of, let us say, giving him lower quality food until he tells us where the bomb is? I guess we must be, so that’s out. This is all about safeguarding our principles, our way of life, our high-minded ideals.
So if all the other terrorists get to watch Amazing Race, it would be inhumane to make this guy, who knows where the bomb is, that is ticking away…sit in front of Friends reruns in solitary confinement. That would be too primitive, right?
Okay now I’m being silly. But that’s the point. Luban is engaged in multiple games of pretend here. Pretend we don’t know what Murad confessed, in a pointless virtual-protest against his treatment in another country. Again, he doesn’t say that outright but his argument rests on the dictum that that is what we should do. Pretend we can control what people think about our country, that people will stop hating us if we stop torturing, which we know damn well is not the case. Pretend that how “good” of a people we are, is some kind of moral absolute and is not subject to individual interpretations, or the day-to-day whims of people simply changing their minds, favorably or otherwise.
But most offensive of all to logic and common sense, is to simply pretend that Operation Bojinka never happened…and, somehow, cannot happen.
So no, Prof. Luban, it would seem this is emphatically not about two different torture debates, one in fantasy and one in reality. That doesn’t quite capture it. There is, instead, a “clean” debate in which our left-wing anti-war types would like to engage…a world where nobody ever tortures anybody, unless the other side does it first. And then it’s done in retaliation, never to extract information, because that never, ever works.
And then there’s the debate that recognizes if torture never works, it simply wouldn’t be done…not unless one seeks to assert that all torture is cathartic blood-lust, a personal exercise in arousal for the person doing the torturing. The latter of those two enjoys the luxury of learning from Operation Bojinka, and recognizing what took place: TORTURE WORKED. The former argument can’t afford to rely on this anecdote. It damages itself in doing this, because the anecdote proves that torture can be used to extract information, and human lives can and do depend on it.
Nobody ever reads this blog, of course, but the cartoon at right has been doing something rather significant to change that since we posted it 
