I mean, hasn't anyone ever seen 24? Is the "ticking time bomb" hypothetical really that far-fetched?
To me, the problem is not that this government might torture a terrorist to find a bomb that is about to go off in Times Square, I can live with that. And in fact, most people probably expect and accept that an FBI agent faced with that situation would do whatever it takes to protect the innocent lives that the terrorist has put at risk. The problem, duh, is that once you open the door like that, then all people need to do is convince themselves that they are stopping an imminent disaster in order to justify torture. And that could (nay, did, it appears) lead to all kinds of justifications for shit that most people agree just shouldn't happen.
When life hands Jack Bauer lemons, he uses them to kill terrorists.
In early 2002, in the heyday of post-9/11 hysteria (some justified, some not), Alan Dershowitz made a controversial (some would say tongue-in-cheek) proposal that torture should only be permitted when law enforcement officials obtain a warrant from a judge to impose "non-lethal" physical pain on a suspect in order to elicit information necessary to save lives.
Under my proposal, no torture would be permitted without a "torture warrant" being issued by a judge. An application for a torture warrant would have to be based on the absolute need to obtain immediate information in order to save lives coupled with probable cause that the suspect had such information and is unwilling to reveal it. The suspect would be given immunity from prosecution based on information elicited by the torture. The warrant would limit the torture to nonlethal means, such as sterile needles, being inserted beneath the nails to cause excruciating pain without endangering life.
It may sound absurd for a distinguished judge to be issuing a warrant to do something so awful. But consider the alternatives: Either police would torture below the radar screen of accountability, or the judge who issued the warrant would be accountable. Which would be more consistent with democratic values?Those opposed to the idea of a torture warrant argue -- quite reasonably -- that establishing such a precedent would legitimize torture and make it easier to extend its permissible use beyond the ticking bomb case.
Those who favor the torture warrant argue that the opposite would be true: By expressly limiting the use of torture only to the ticking bomb case and by requiring a highly visible judge to approve, limit and monitor the torture, it will be far more difficult to justify its extension to other institutions. The goal of the warrant would be to reduce and limit the amount of torture that would, in fact, be used in an emergency. This is an issue that should be discussed now, before we confront the emergency. So, let the debate begin.
It is worth noting that he wrote this before the warrant-less wiretap issues became national news, and the legitimacy of "secret courts" operating under FISA was called into question. No doubt a "torture court" would be closed to the public, too, and could lead to some of the same problems that surround FISA. There are at least a dozen other ethical and practical hurdles to his "proposal" (and again I put it in quotes because I am not sure he was really serious about it), but to me shooting down his proposal is the easy side of the argument. If you want to be "anti-torture" 100% of the time, then you have to be willing to let that bomb go off in Times Square even if you know that torturing the guy who put it there would stop it. I am not sure any of us could live with that.