'Mumbai Scenario' Shakes Up the Torture Debate

Torture is a brutal act that has no place in the toolkits of civilized nations -- except, perhaps, when attempting to prevent even more brutal acts by the jihadists who target them. Because of its unique characteristics, the November 2008 terror attack on Mumbai offers a compelling test bed for policies that govern the use of coercive interrogation during times of crisis. At the very least, those advocating an unqualified ban on such methods should be made to defend their position in the context of the Mumbai scenario.

An inspection of the ground assault on India's financial capital reveals more than a passing resemblance to the much-maligned ticking time bomb (TTB). Popularized by dramas like 24, this hypothetical construct has been a favorite of pundits and policymakers eager to keep the door open for harsh interrogation techniques, especially in the event of a national emergency. If a captured terrorist possesses information that could help thwart an imminent attack, they ask, should not officials be permitted any and all means to extract it?

Philosopher Michael Walzer considered this question three decades ago in a now-classic essay, "Political Action: The Problem of Dirty Hands." His plotline involves a well-intentioned head of government being "asked to authorize the torture of a captured rebel leader who knows or probably knows the location of a number of bombs hidden in apartment buildings around the city, set to go off within the next twenty-four hours." Professor Walzer concludes that the protagonist would grudgingly comply with the request, "convinced that he must do so for the sake of people who might otherwise die in the explosions."

September 11, 2001, and subsequent days of infamy have sparked renewed interest in this thought experiment. Reviewing a book by Professor Alan Dershowitz, who has proposed that torture be regulated via warrants, Judge Richard Posner writes, "If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square, torture should be used." The Bush administration agreed, indicating that any ban could be ignored in such circumstances. Justice Antonin Scalia and former President Bill Clinton have sympathized with this exception; then-Senator Hillary Clinton did as well, before backtracking during a primary campaign in which both Republicans and Democrats were queried about TTBs.

Critics, however, slam the TTB as unrealistic, pointing to the fact that none of the four experts who testified at a May 6, 2008, House Judiciary Committee hearing could cite a single substantiated case. Opponents of torture thus contend that a TTB is so unlikely that the scenario should carry no weight in serious discussions of interrogation policy. It is "profoundly misleading," they insist, a "diversion from the national security issues that should be commanding our attention." Professor Stephen Griffin calls it a "fantasy" meant to "cloud our reason and judgment," because "the TTB is not a historical episode that we can examine in all its complexity and, as far as I know, nothing like it has ever happened."