Rosa Brooks: Hillary Hits Bottom

ROSA BROOKS

Clinton ought to know the serious legal ramifications of allowing torture in 'ticking bomb' scenarios.

Rosa Brooks

October 20, 2006

HAS HILLARY CLINTON been watching too many episodes of "24," or is she just determined to prove that she really is entirely without principles?

Whichever it is, Clinton hit a new low last week, telling the New York Daily News that the president should have "some lawful authority" to use torture or other "severe" interrogation methods in a so-called ticking-bomb scenario.

These comments appear to directly contradict her previous statements on the Military Commissions Act, which President Bush signed into law Tuesday. In late September, Clinton objected that the bill "undermines the Geneva Conventions by allowing the president to issue executive orders to redefine what are permissible interrogation techniques. Have we fallen so low as to debate how much torture we are willing to stomach?"

It sure looks that way.

The ticking-bomb scenario has routinely been used to justify the legalization of torture in exceptional circumstances. This is how the argument goes: You capture the terrorist who has just placed a nuclear bomb somewhere in a major American city. If you can't locate and disarm the bomb, millions of people will die. If the terrorist won't talk, should you torture him until he tells you what you want to know?

When you put it that way, of course, few of us would decline to torture the terrorist. In a utilitarian sense, it's surely better to torture one bad guy than to allow the deaths of millions of innocents, right?

But though ticking-bomb scenarios pack an emotional wallop, such fictional scenarios are useless — and profoundly misleading — when it comes to making real-world decisions.

In the real world, the issue isn't whether torture might be morally justifiable in some exceedingly rare situations. The issue is whether it's wise, in a democratic society, to invite the government to pass laws or issue regulations outlining the circumstances in which torture would be justified.

The operative phrase here is "slippery slope." In real life — as opposed to the world of "24" — government officials generally don't know for sure if they've captured the right person.

And they're even less likely to know for sure whether a particular detainee possesses information that could thwart an imminent attack on millions of people.

In real life, interrogations are often fishing expeditions. Detainees might have critical information, but they might not. Do you torture or mistreat them when you're not completely sure? How much certainty do you need? How many lives must be at stake before torture is justified: 10 million, 10,000, 10, One?

And exactly what kinds of interrogation methods are justified? If a terror suspect won't talk even when tortured, can you up the pressure by torturing his wife too? How about killing his children, or ordering the slaughter of every member of his immediate family? Such tactics might get him to cough up the information — and hey, from a utilitarian perspective, aren't they justified in the interests of saving millions of lives?

But … do you really want to see U.S. law outlining exactly how many atrocities can be committed against how many people to — maybe — save a certain number of other people?

Make no mistake — logically, that's where the ticking-bomb scenario takes you. Clinton insists that she wasn't really saying that torture should be legal — no, no, of course not. She still thinks that torture is immoral, ineffective and counterproductive. It's just that for an "improbable but possible eventuality" such as a true ticking-bomb scenario, she thinks that we should make "a very, very narrow exception within very, very limited circumstances."

And this wouldn't undermine the Geneva Convention? You'd better believe that countries such as Syria, North Korea and Iran would also just love to carve out some "very, very narrow exceptions" to treaties banning torture.

CLINTON OUGHT to know better. Plenty of immoral things might conceivably be justified in far-fetched hypothetical situations, but that doesn't mean the law should bless those exceptions in advance.

Take treason. Is it possible to construct far-fetched hypothetical situations in which treason might be justified? Sure. If one were faced with a choice between betraying one's country and allowing the Earth to be destroyed, treason might well be morally justified. But that doesn't mean we should pass laws laying out the conditions under which treason would be permissible.

Or how about rape? If torture can be justified by utilitarian principles, then in some "very, very limited circumstances," rape can presumably be justified as well. Would Clinton — would any American — truly want to see legislation laying out the unique circumstances in which rape should be permitted?

No. We really, really don't want to go there.

Clinton was right about one thing: When you start to contemplate writing those "very, very narrow" exceptions into law, you've fallen as low as it's possible to go.