Torture in Dreamland: Disposing of the Ticking Bomb

Abstract

ION Gross and I both think, it seems, that torture should remain, as it is, absolutely non-derogably illegal. But we both also wished that if a public honestly, upon careful reflection, judged that the ultimate catastrophe loomed but that it could be prevented if and only if some one personor even some small number of persons-were tortured, he could act on his conviction and conduct the torture the law. I say outside the law in order to fudge some differences between us that, although they are important, I do not want to pursue very far here. As his comments regarding the quotation from Carl Schmitt that I introduced at the beginning of this piece indicate, Gross believes that the arrival of what he calls the catastrophic case heralds, or perhaps simply constitutes, the suspension of normality that, Schmitt claimed, is a necessary condition for the rule of law. Schmitt seems to me to have matters backwards. It is when conditions are eroding that one really needs the rule of law. But that is a long story for another time. Gross characterizes the non-normal situation as extra-legal,' which is worrisome because it seems much too wholesale. To be fair to him, however, he insists that any entry into the extra-legal be considered for 18 Id. at 240. 2006] CASE W. RES. J. INT'L L. post ratification.' 19 In his hypothetical, if the move to the extra-legal is not granted ex post ratification, then any who ordered torture as an act of official may be punished criminally and sued civilly for violating the laws against torture. 20 My 1978 proposal was much more limited and simple: essentially, that the torture would be like an act of civil disobedience at least in the respect that the conscientious torturer would willingly submit to charges and trial. If the torture had demonstrably prevented the end of the world, the charges would presumably be dropped or the sentence suspended. The difficulty, which seems equally severe for Gross's suggestion and mine, is that our reluctant torturer would probably also be an incompetent torturer, most unlikely to succeed at what might well be his first try at extracting information. Successful torturers must avoid sympathy and empathy, or they will go too easy. But they must also avoid anger and cruelty, or they will go too hard and merely knock the victim senseless, or drive him into a dissociative state, and learn nothing useful for the prevention of catastrophe. Torture is not for amateurs-successful torturers need to be real pros, and no one becomes a pro overnight. At a minimum, one must practice-perhaps do research, be mentored by the still more experienced. In short, torture needs a bureaucracy, with apprentices and experts, of the kind that torture in fact always has. Torquemada was not an independent consultant. Torture is an institution. 21 Arrigo sums it up this way: The use of sophisticated torture techniques by a trained staff entails the problematic institutional arrangements I have laid out: physician assistance; cutting edge, secret biomedical research for torture techniques unknown to the terrorist organization and tailored to the individual captive for swift effect; well trained torturers, quickly accessible at major locations; pre-arranged permission from the courts because of the urgency; rejection of independent monitoring due to security issues; and so on. These institutional arrangements will have to be in place, with all their unintended and accumulating consequences, however rarely terrorist suspects are tortured .... [T]he harm to innocent victims of the terrorist should be