October 2005: Law Professor, Author Debunk ‘Ticking Bomb’ Scenario Used to Justify Torture

In an essay for the Virginia Law Review entitled “Liberalism, Torture, and the Ticking Bomb,” Georgetown law professor David Luban dismantles the familiar argument that torture of a detainee might be necessary to stop the so-called “ticking bomb scenario.” Author and former White House counsel John Dean, who quotes Luban in his 2006 book Conservatives Without Conscience, will describe the scenario and its ramifications thusly: “A nuclear bomb has been planted in the heart of a major American city and authorities have in custody a person who knows where it is located. To save possibly millions of lives, would it not be justified to torture this individual to get the necessary information to stop it? Absolutely. Is not this lesser evil justified? Of course it is. And this argument is a wonderful means to comfort those who have moral problems with torture. Its beauty is that once you concede there are circumstances in which torture might be justified, morally and legally… you are on the other side of the line. You’ve joined the torture crowd. To paraphrase [George W.] Bush, you’ve joined the evildoers.” Dean calls it “a bogus argument, a rhetorical device. It is seductively simple, and compellingly logical. But it is also pure fantasy.” The likelihood of such conditions are extremely remote, Dean writes, on the order of a giant meteor striking the Earth. Dean will cite Luban’s arguments as counters to the scenario. Luban writes, “[T]here are certain situations so monstrous that the idea that the processes of moral rationality could yield an answer in them is insane… to spend time thinking what one would decide if one were in such a situation is also insane, if not actually frivolous.” Luban notes that Senator John McCain (R-AZ), himself a victim of torture during the Vietnam War (see October 1, 2005 and November 21, 2005), “has said that ultimately the debate is over who we are. We will never figure that out until we stop talking about ticking bombs, and stop playing games with words.” [Dean, 2006, pp. 165]