Dershowitz and the “Ticking Time-Bomb” Fantasy

Slate is publishing a set of dispatches this week about Israel’s newest tourism innovation: the “Ultimate Counter-Terrorism Mission,” which is “packed full of visits to military bases, security briefings from members of Mossad and Shin Bet, and stops for fine dining.” The dispatches are fascinating and well worth reading in themselves, but I was particularly struck by an anecdote in today’s dispatch, involving a guest lecture that Haim Ben Ami, a former head of interrogations at Shin Bet, gave to one of Alan Dershowitz’s Harvard Law School classes about the infamous “ticking time-bomb” scenario. As most readers probably know, Dershowitz used the scenario to defend torture in an editorial in the L.A. Times:

“But what if (torture) were limited to the rare “ticking bomb” case–the situation in which a captured terrorist who knows of an imminent large-scale threat refuses to disclose it?

Would torturing one guilty terrorist to prevent the deaths of a thousand innocent civilians shock the conscience of all decent people.

To prove that it would not, consider a situation in which a kidnapped child had been buried in a box with two hours of oxygen. The kidnapper refuses to disclose its location. Should we not consider torture in that situation?”

Dershowitz answered that question it in the affirmative in a later interview with the San Francisco Chronicle:

“Everybody says they’re opposed to torture. But everyone would do it personally if they knew it could save the life of a kidnapped child who had only two hours of oxygen left before death. And it would be the right thing to do.”

To his credit, Dershowitz acknowledges that “the argument for allowing torture as an approved technique, even in a narrowly specified range of cases, is very troubling.” He thus insists that the use of torture be conducted openly, with judicial authorization — his notorious “torture warrant”:

I have no doubt that if an actual ticking bomb situation were to arise, our law enforcement authorities would torture. The real debate is whether such torture should take place outside of our legal system or within it. The answer to this seems clear: If we are to have torture, it should be authorized by the law.

Judges should have to issue a “torture warrant” in each case. Thus we would not be winking an eye of quiet approval at torture while publicly condemning it.

Democracy requires accountability and transparency, especially when extraordinary steps are taken. Most important, it requires compliance with the rule of law. And such compliance is impossible when an extraordinary technique, such as torture, operates outside of the law.

Here’s where the Slate anecdote about Ben Ami becomes interesting. Commentators on both the left and the right have criticized the ticking time-bomb scenario as being wildly implausible. You would think, therefore, that someone who believes that torture should be accompanied by accountability and transparency would be concerned with separating fantasy from reality — with not making the ticking-time bomb scenario seem far more likely, and thus the right to torture far more necessary, than it really is. But no:

Like a good TV show, it was often hard to tell where Ben Ami’s stories crossed over into fiction. In his own version of a “ripped from the headlines” story, he recalled giving a lecture to law students at Harvard at the invitation of well-known professor Alan Dershowitz. He recounted to the students Shin Bet’s involvement in delivering a suspected terrorist to the U.S. Embassy in Lebanon in 1983. The Israelis, Ben Ami said, had knowledge of a planned attack on the United States, but they knew no details. As Ben Ami recalled, the Israelis told the Americans: “Take him, make an interrogation, and we wish you success.”

Except the suspect wouldn’t talk. “He said: ‘Look, I wish to talk, but I’m very tired. I’d like to fall asleep for at least two hours.’ ” The suspect was taken, at his request, to a nearby apartment to sleep. The next day, the embassy was destroyed.

The story is a powerful argument in favor of torture—or at least enhanced interrogations—except for one problem: Like Ben Ami’s other story of the drowned terrorists (and most stories involving a “ticking time bomb”), it’s apocryphal. It never happened. Real life is never that clean-cut. Ben Ami, however, forgot to reveal that to the Harvard law students.

Realizing his mistake later that day, Ben Ami panicked. “I called Alan Dershowitz and said, ‘It’s wrong.'” As Ben Ami recalled, Dershowitz told him not to worry: “He said, ‘No, it’s a good story, leave it.'”

I think Dershowitz has made the critics’ point. Accountability and transparency for torture indeed!