frankenthaler louis defusing ticking bomb

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Defusing The Ticking Bomb: An Essay In ProcessBy Louis Frankenthaler Education and Development Director, The Public Committee Against Torture in Israel

Introduction

Even after the important High Court of Justice (HCJ) ruling in 1999 1, torture 2 still exists in Israel 3 and it is mostoften used within the context of the employment of what is known as the defense of necessity. The extent towhich the Court actually banned the use of torture is debatable. The Court did not equate the methods used byIsraels General Security Service (GSS) with torture. Furthermore, the Court discussed in depth the issue of necessity as a defense in the event that a GSS agent may be prosecuted following an interrogation related

prosecution. The States argument in the case (paragraph 33 of the decision) is that it can use the necessitydefense as a means to imply the authorization, a priori, of the use of force in order to prevent serious harm tohuman life or limb that is, in the case of a ticking bomb. The State also raised this argument but would notlimit using force to preventing catastrophic consequences. The Court held in paragraph 40 that:

We declare that the necessity defense, found in the Penal Law, cannot serve as a basis of authorityfor the use of these interrogation practices, or for the existence of directives pertaining to GSS

investigators, allowing them to employ interrogation practices of this kind. Our decision does notnegate the possibility that the necessity defense be available to GSS investigators, be within thediscretion of the Attorney General, if he decides to prosecute, or if criminal charges are brought againstthem, as per the Courts discretion.

However, when the Court examined the matter of the ticking bomb scenario (that is, a situation in which there isan imminent threat to human life (usually) on a large scale and, according to the scenario, that torture is the onlyway to get information to neutralize the threat and save lives) it recognized that necessity defense claims might

be appropriately applied.

We are prepared to assume that although this matter is open to debateThe necessity exception islikely to arise in instances of ticking time bombs, and that the immediate need (necessary in animmediate manner for the preservation of human life) refers to the imminent nature of the act rather

than that of the danger. Hence, the imminence criteria is satisfied even if the bomb is set to explode ina few days, or perhaps even after a few weeks (Paragraph 34).

The Court, in the above-cited paragraph, did recognize the contentious nature of the scenario but its treatmentof the matter seems to tolerate the potential use of torture. The Court, though, is careful to note that it does notneed to decide this matter in order to come to its ruling. It is possible then to understand the Courts ruling inthis manner: The Court correctly maps the position of international law, that torture and cruel and inhumantreatment is absolutely prohibited. However, the Court did not actually equate Israels interrogation methodswith torture (in ruling that the methods are illegal forms see paragraphs 9-13 for a treatment of the methods

of interrogation) and it recognizes that there may be circumstances in which an agent of the State theoretically being prosecuted for committing torture may employ the necessity defense. Additionally the Attorney General(the authority responsible for determining whether or not to prosecute) can determine that a case of necessitywas presented and that prosecution is unwarranted. Further, in the event of a ticking bomb scenario it seems

1 The Public Committee Against Torture in Israel et. al. v The Government of Israel et. al. HCJ 5100/94 and handed down 6 September 1999 (Tak-El 458 (3) 99. The petition was brought by the following parties: Public Committee Against Torture in Israel, the Association for Civil Rights in Israel, HaMoked: Center for the Defense of the Individual, and individual lawyers. Available athttp://www.stoptorture.org.il/eng/publications.asp?menu=7&submenu=42 Torture can be widely defined. I will simply say that it is the use of pain against a detainee while he is under interrogation. Elaine Scarry(The Body in Pain, Oxford, Oxford University Press. 1985 ) would say that it is the juxtaposition of two acts, the physical act theinfliction of pain, and the verbal act the asking of questions. The act is an indescribably cruel one that, as she says, is world destroying.International law defines torture as well. The United Nations Convention against Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment defines torture as: any act by which severe pain or suffering, whether physical or mental, is intentionally inflictedon a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third

person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based ondiscrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a publicofficial or other person acting in an official capacity. The Convention absolutely forbids torture.http://www.unhchr.ch/html/menu3/b/h_cat39.htm3 For an excellent discussion of torture and Israel see Lisa Hajjar, Courting Conflict: The Israeli Military Court System in the West Bank and Gaza (London: University of California Press, 2005), Chapter 2 (pp. 68-75) see also Stanley Cohen "Talking about Torture in Israel,"Tikkun, Vol. 6, 1991 and two BTselem reports by Stanley Cohen and Dafna Golan from the early 1990s http://www.btselem.org/english/


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to be that the Court accepts that it is certainly arguable that necessity could be used as a defense in such amatter. 4

This leads us into a brief examination of the Ticking bomb scenario. PCATI has seen indications that the GSShas predetermined in certain cases that they are dealing with a ticking bomb scenario and that they willtherefore use force in the course of the interrogation. There is, of course, little documentation made public by

the GSS of such instances, although PCATI has come into possession of or been able to view such texts on avery limited number of occasions. But the critical matter at hand is not the determination of the individualsstatus as a ticking bomb but whether or not that justifies torture. In short, it should not.

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. 5

Furthermore the notion of accepting the ticking bomb scenario as a given reality that can, under certaincircumstances, justify the use of torture by a democratic regime is quite problematic:

The liberal ideology of torture, which assumes that torture can be neatly confined toexceptional ticking-bomb cases and surgically severed from cruelty and tyranny, represents adangerous delusion. 6

Torture is absolutely prohibited precisely because it presents an abuse that is so abhorrent that it threatens thefabric of a society. Luban argues that even the presentation of the ticking bomb scenario is an effort to get thosewho are absolute prohibitionists to give in on one small point. Then, if it is possible to get him to accede to theuse of torture he no longer possesses a morally superior position. 7 His implication is that the ticking bombscenario is an intellectual manipulation and, in his discussion, it leads to totally unacceptable scenariosregarding the devolution of society. Further he argues 8 that the scenario is reduced to an exception or a onetime only scenario. Reality is that interrogations are not based on case-by-case thinking, but rather by policy.That is, if torture is to be used under such circumstances it has already wound its way into the fabric of the

practice of interrogations. Perhaps this is describes the situation in Israel, explaining how on the one hand Israelmakes asserts its democratic nature, but, at the same time continues to use torture.

Be this as it may, the question remains: if there is a chance of saving many lives by using torture why not use it?

There are a number of sources treating this question. Suffice it to say that one must determine ones moralstance and ones vision of a just society. A particular stream of this discourse has expressed suggestions for setting up a system of supervised torture, under a warrant regime. 9 This would, in effect legalize the illegalvalidate the invalid. Michael Ignatieff wrote:

[Professor] Dershowitz's ideas suggest that it is possible to bring the rule of law into theinterrogation room, but as an exercise in the lesser evil, it is likely to lead to the greater. Onceyou allow warrants for genuine ''ticking bomb'' cases -- situations in which torture can preventan imminent calamity from occurring -- little by little, torture may be used when there is noimmediate danger. There has never been any certainty, moreover, that information extracted

by torture is more reliable than information coaxed out of a suspect by persuasive means.Why should we suppose that pain produces truth? And how can we forget what everyone whohas ever been tortured always tells us: those who are tortured stay tortured forever. If youwant to create terrorists, torture is a pretty sure way to do so. 10

Even if one could argue as Dershowitz wrote, "Everybody says they're opposed to torture. But everyone woulddo it personally if they knew it could save the life of a kidnapped child who had only two hours of oxygen left

4 See PCATI publication, BACK TO A ROUTINE OF TORTURE: Torture and Ill-treatment of Palestinian Detainees during Arrest,Detention and Interrogation September 2001 April 2003 esp. Chapter 3 (available in Hebrew, English and Arabic athttp://www.stoptorture.org.il/eng/publications).5 Convention against torture, article 26 David Luban, Liberalism, Torture, And The Ticking Bomb, 91 VA. L. R EV . 1425 (2005)7 ibid. pp. 1440-14418 ibid. p. 14459 See Alan Dershowitz, Why Terrorism Works, London, Yale University Press 2002 as cited in JohnKleinig, TICKING BOMBS AND TORTURE WARRANTS, DEAKIN LAW REVIEW VOL. 10 NO. 2 (2005)notes 40 and 4110 Lesser Evils, by Michael Ignatieff May 2, 2004 Reprinted from the New York Times Magazinehttp://www.ksg.harvard.edu/news/opeds/2004/ignatieff_less_evils_nytm_050204.htm


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before death. And it would be the right thing to do." 11 William J. Aceves, a professor of international lawwrites that the ticking bomb scenario falls apart upon careful scrutiny it assumes that torture will beeffective in gaining access to the critical information. In fact, however, torture is notoriously unreliable.Torture has a tendency to not work, to illicit false information. Further, although Dershowitz reasoning mightlead one to believe that there is an efficacy in the use of torture the opposite seems to be true.

There is no demonstrable and convincing evidence that degradation, humiliation and other HCI [highly coercive interrogation, LF] techniques will produce truth more effectively andquickly than equally or potentially more persuasive methods of skilled interrogators that arenot degrading or humiliating. 12

To be fair, Dershowitz asserts his opposition to torture. 13 He writes, I am against torture as a normative matter,and I would like to see its use minimized. But since he knows that torture (moderate forms of non lethaltorture) is being used by the US and other states he would like to see the practice brought under judicialmanagement. The process would involve requesting a warrant, which would take the decision making power out of the hands of a field officer under intense pressure and place it in the hands of a reasoned jurist,comparable to the process of requiring a police officer to obtain judicial approval (a search warrant) to conducta search. 14 His opinion is that this regulation of an otherwise objectionable act would reduce its use and removeit from the realm of being extra-legal to being legal, supervised and limited. He has many critics, most of whom he cites in his ongoing discourse on the issue. Many of them are of the opinion that if you regulate andallow torture in one case the danger of applying it on a wider scale or in using the same reasoning to applywarrants to other instances of potential official violence magnifies.

In my opinion the problem with Dershowitzs argument is two-fold. First, the warrant process, (upon whichDershowitz bases his legal analysis), demands that a warrant be obtained in accordance with the protectionsfound in the United States Constitution. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, againstunreasonable searches and seizures, shall not be violated, and no warrants shall issue, butupon probable cause, supported by oath or affirmation, and particularly describing the place to

be searched, and the persons or things to be seized. 15

It is clear that the amendment recognized a right/protection that can be violated only under very particular circumstances. These circumstances are obviously limited to law enforcement and prosecution and are intendedto be strictly scrutinized. The point is that the Constitution does not seem to offer the possibility to exercise thewarrant option in order to infringe on a right in matters in which the Constitution would otherwise absolutely

prohibit such an infringement. Even the (obviously mistaken) understanding in many United StatesJurisdictions that the Death Penalty is not cruel and unusual (see the Eighth Amendment) is being challenged,with even the conservative Supreme Court outlawing the death penalty in an increasing number of cases. 16 So,in many ways the application of a warrant system for using torture is a jurisprudential step backwards in anystate that calls itself enlightened and democratic, especially the United States, and in turn Israel. United States

jurisprudence has advanced in many respects (although, in practice, the United States has some distance totravel in terms of satisfactorily achieving equality and social justice). So, the institutionalization and legalizationof torture would be a significant setback.

On another matter, Professor Dershowitzs reasoning regarding the use of torture is such that he assumes thatreasonable people would approve of its use to save lives in the face of imminent danger. He used the case of akidnapped child running out of oxygen and, as we saw above, the ticking time bomb situation, in which the

persons being tortured are evil criminals or terrorists. But if we follow his reasoning, that torture could be used,should be used and probably is being used to protect innocent life threatened by imminent danger of mass death

11 This quote and the following quotes are taken from Amnesty International USA and can be found at:http://www.amnestyusa.org/askamnesty/torture200112.html 12 See Michael Traynors dissent to: Heymann, Philip B., and Juliette N. Kayyem. Preserving Security and Democratic Freedoms in theWar on Terrorism . Final Report of the Long-Term Legal Strategy Project. Cambridge, MA: Belfer Center for Science and InternationalAffairs, 16 Nov 2004. both available at: http://bcsia.ksg.harvard.edu/publication.cfm?program=CORE&ctype=book&item_id=41013 Alan Dershowitz, Tortured Reasoning In Sanford Levinson (ed.) Torture A Collection, Oxford, Oxford University Press 200414 Alan M. Dershowitz, The Torture warrant: A Response to Professor Strauss, 48 NEW YORK Law SCHOOL Law REVIEW, NO. 1-2,2003/04 (282)15 United States Constitution, Bill of Rights http://www.law.cornell.edu/constitution/constitution.billofrights.html 16 See, for example, http://www.amnestyusa.org/abolish/success.do


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and destruction (by terrorists) where would that leave us in other situations: The imminent release of releasingdeadly toxins into a public drinking water source by a factory owner; the cases of Love Canal or Bhopal; 17 lifethreatening defective products being sold to the public. In such cases it is arguable that those responsible for such disasters and potential disasters may have had prior knowledge of the situation and of its danger yetrefused to inform the public. Would Professor Dershowitz allow judicially regulated physical coercion to beused in cases in which the authorities have reason to believe that corporate executives have such information

but refuse to reveal it? These are important issues that should be addressed. The critical point is that the danger is clearly present that once you authorize torture, even under judicial supervision, it will surely be expanded inits use and abuse.

Thus, while there are a variety of arguments regarding torture and the ticking bomb, 18 my conclusion is that therisks and the abject harm to the body and soul of the individual victim, the corruption of the perpetrator and of society do not justify approaching the risks inherent in giving torture a legal, moral or ethical stamp of approval,under any circumstances.

17 Love Canal: http://ublib.buffalo.edu/libraries/projects/lovecanal/ Bhopal: www.greenpeace.org/international/campaigns/toxics/toxic-hotspots 18 See for example Frontlines treatment at: http://www.pbs.org/wgbh/pages/frontline/torture/justify/#1 . See also Charles Krauthamer, TheTruth about Torture, The Weekly Standard, Vol. 11 Issue 12 12/05/2005. He writes: This "hypothetical" is common enough that theIsraelis have a term for precisely that situation: the ticking time bomb problemAnd even if the example I gave were entirely hypothetical,the conclusion--yes, in this case even torture is permissible--is telling because it establishes the principle: Torture is not alwaysimpermissible. However rare the cases, there are circumstances in which, by any rational moral calculus, torture not only would be

permissible but would be required (to acquire life-saving information). And once you've established the principle, to paraphrase GeorgeBernard Shaw, all that's left to haggle about is the price. In the case of torture, that means that the argument is not whether torture is ever

permissible, but when--i.e., under what obviously stringent circumstances: how big, how imminent, how preventable the ticking time bomb. http://www.weeklystandard.com/Utilities/printer_preview.asp?idArticle=6400&R=C80B521A See a counter argument by AndrewSullivan in the New Republic, Issue date 12.19.05 https://ssl.tnr.com/p/docsub.mhtml?i=20051219&s=sullivan121905

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