Cassel: If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?
Yoo: No treaty.
Cassel: Also no law by Congress -- that is what you wrote in the August 2002 memo...
Yoo: I think it depends on why the President thinks he needs to do that.
-- Human rights expert Doug Cassel and John Yoo, 12/1/05
Why the President thinks he needs to do that is, apparently, the ticking time-bomb scenario, a thought-experiment first proposed some thirty years ago and now widely regarded as reflecting the real world.
Here's another thought-experiment: Attorney General Mukasey admits that he personally would consider waterboarding torture, but can't say whether waterboarding is legally torture because if the bad guys know it's illegal then their awful plots are safe from being revealed by waterboarding. Therefore, the only way to make sure terrorists think they will be waterboarded is to keep secret whether it's legal or illegal.
Presumably the AG knows whether waterboarding is legally torture or not; we also understand that the success of his mission (indeed, his very job) depends on not telling the truth. We decide the best way to find out if torture is legal is to waterboard him.
And so, wet and sputtering, (remember, it's only a thought-experiment) he finally says "Yes it's legal" or "No, it's not legal."
Now what? We still have to decide whether he told the truth. If he says it's legal do we know that it is, or only that he said that to stop the torture? If he says it's illegal - same business. Better waterboard him again ... and again ... until we get the answer we want? or until he drowns?
In fiction and fantasy, what the victim says under torture is a 'truth' that justifies the rest of the story. In the real world, real outcomes suggest that what people say under torture is almost never the truth.
Claims that torture stopped an attempt to blow up a dozen trans-Pacific aircraft in 1995 are false. When the Manilla police arrested Abdul Hakim Murad they found his entire bomb plot on his laptop computer. Murad was beaten and tortured for 67 days after that, but added no real intelligence - only confirmed some fabrications of his torturers.
Arguments for torture run up against practical, real-world problems. Torture might be theoretically justifiable in certain very narrow circumstances within certain logical systems built on certain moral premises. But these same constraints make it highly unlikely that all these conditions would converge at the same time and place. Simply having the right terrorist in custody when the time-bomb starts ticking is highly unlikely.
Furthermore, a large and complex (and expensive) oversight system would be necessary to ensure that any torture was in fact appropriately justified and properly carried out. Then there is a human dimension: a top FBI expert in interrogations noted: "Only a psychopath can torture and be unaffected. You don't want people like that in your organization. They are untrustworthy, and tend to have grotesque other problems."
"Ticking time bomb" scenarios are entirely fictional and highly improbable, but very compelling. It's easy to see why commercial news and entertainment media employ them: they work. We buy them, not only commercially, but psychologically and socially, and we buy vast quantities of products and services, policies and wars associated with them. There is a black market in torture, and a regular market -- our own CIA buys torture from biddable states. Wars and all kinds of terrorism are collective torture, and mercenaries and arms-merchants are privateers in the business of selling torture and the implements of torture.
We need to ask ourselves why so many of us indulge in these brutal thought-experiments and engage with their underlying illogic, counterproductiveness and inhumanity. We need to understand how human weakness for bullying, hurting, power, revenge, and anger can be so easily exploited for power, profit and pleasure.
And, critically, because the use of torture by people in power reflects an inability to deal in constructive ways with perceived threats, we need to know if candidates for president know the difference between a "ticking time bomb" fiction and the practical realities of government, laws, treaties, human values and humane relations with our neighbors.
Here's how three candidates said they'd handle the "ticking time bomb" thought-experiment:
McCain: "Should [an interrogator use torture] and thereby save an American city or prevent another 9/11, authorities and the public would surely take this into account when judging his actions and recognize the extremely dire situation he confronted."
Hillary Clinton: "Those are very rare, but if they occur, there has to be some lawful authority for pursuing it ....[If] we have sufficient basis to believe that there is something imminent, yeah, but then we've got to have a check and balance on that."
Obama :"The secret authorization of brutal interrogations is an outrageous betrayal of our core values, and a grave danger to our security ...torture is not a part of the answer - it is a fundamental part of the problem .... Torture is how you create enemies, not how you defeat them. Torture is how you get bad information, not good intelligence ... When I am president America will ...[stand] up to these deplorable tactics. When I am president we won't work in secret to avoid honoring our laws and Constitution, we will be straight with the American people and true to our values."