The Ethics of Interrogation: Professional Responsibility in an Age of Terror

Chapter Four: Ticking Bombs and Dirty Hands: Coercive Interrogation and the Rule of Law

Four Ticking Bombs and Dirty Hands Coercive Interrogation and the Rule of Law Coerced confessions offend the community’s sense of fair play and decency. So here [in this case], to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. —Rochin v. California, 342 U.S. 165, 172 (1952) Among legal academics, a near consensus has emerged: coercive interrogations must be kept “illegal,” but nonetheless permitted in certain circumstances. —Eric A. Posner and Adrian Vermeule, “Should Coercive Interrogation Be Legal?” 673 One of the striking claims Alberto Mora makes in his “Statement for the Record” memorandum is that, while he is uncertain about the morality of torture in a “ticking bomb” case, he can imagine a scenario in which he might be prepared to torture a suspected terrorist. In such a case, he says, he would apply the torture himself, but “with full knowledge of potentially severe personal consequences.”1 Even in that case, however, he argues that the laws and values of the nation should not be changed to render torture lawful. Discussions of the ticking bomb scenario have been pervasive in debates about coercive interrogations, and for that reason, we will need to take up the arguments around this scenario.2 Before we turn to the ticking bomb, however, it is important to note that the arguments about whether torture should be legal if it might prevent a horrific terrorist attack are not merely framed as matters of law. As Mora makes 92 Chapter Four clear, the values for which the law stands and to which legal professionals must be committed are implicated in the debate. Professional responsibility thus requires engaging the larger questions of values that are at stake in the debate about coercive interrogation. Just as we must assess the argument that Yoo and Bybee failed to provide thorough, objective, and candid advice, we must assess the claim that legal professionals cannot embrace a practice that is contrary to the rule of law. Eric Posner and Adrian Vermeule, quoted in an epigraph above, are probably right that most legal academics have defended the view that torture must remain illegal, but not all have. Perhaps the best-known arguments for legalizing torture have come from Alan Dershowitz, and his arguments merit serious consideration.3 What is particularly interesting about Dershowitz’s position for our purposes is that he defends his view by appealing to democratic values. He would disagree with Mora that legalizing torture compromises core democratic values; on the contrary, according to Dershowitz, authorizing torture in rare cases is the best way of preserving those values. The Ticking Bomb Scenario Dershowitz’s proposal is born from what he believes to be a toughminded and realistic assessment: if the United States and other democratic countries can prevent terrorist attacks on innocent civilians by torturing known terrorists, they will. If that assessment is correct, Dershowitz argues, then we need to ask ourselves whether it would be better to torture in secret or openly within a system that demands and provides accountability. According to Dershowitz, a scenario in which a known and uncooperative terrorist has information about a ticking bomb that is set to explode imminently—and that is likely to kill many innocent civilians—pits at least three democratic values against one another in a way that leads to tragic choice. The first value is the safety and security of a country’s citizens; the second value is a commitment to human rights; the third value is democratic openness and accountability.4 In the face of this tragic choice, Dershowitz’s position is unwavering : we must preserve the first and third values. While violations of human rights should be minimized, they are not prohibited. Indeed, the state must explicitly and openly permit the use of torture to safeguard Ticking Bombs and Dirty Hands 93 the lives of its citizens. Nor does he flinch at recommending types of torture. Here is the specific scenario Dershowitz sketches, along with his advice for what should be done. Suppose that the FBI had actually searched the computer of Zacarias Moussaoui in the weeks before September 11, 2001, and found that there was a plan to destroy a number of occupied buildings in the coming weeks.5 Further, let us also suppose that Moussaoui was interrogated , offered immunity from prosecution, and even injected with...