Unfortunately, torture has been relevant now for a long time, and continues to be so. The best justification for it that its advocates provide is the so-called Ticking Bomb Scenario (TBS): a terrorist knows where a bomb lies ticking, ready to go off and kill thousands of innocents. Only by torturing the terrorist can we find out where the bomb is and prevent all those deaths.

Progressives, I think, have sometimes stumbled a bit in responding to this scenario. In January of this year, while giving Congressional testimony, Attorney General Mukasey responded to Senator Biden’s worry that the AG thought about torture in relative terms by saying that

it was “not simply a relative issue,” but there “is a statute where it is a relative issue,” he added, citing the Detainee Treatment Act. That law engages the “shocks the conscience” standard, he explained, and you have to “balance the value of doing something against the cost of doing it.” (From TPM).

Biden professed that his conscience was shocked by Mukasey’s views. Progressive bloggers professed to be equally shocked (Marty Lederman, Digby, Glenn Greenwald and many others). But shock at what Mukasey said, and the concomitant implied response to the TBS that one should not engage in torture even then, do not seem to me the strongest ways to repudiate torture.

Before I explain why, a brief digression. I believe Mukasey was actually discussing whether waterboarding counts as torture. The issue is significant for him because he is taking it for granted that torture is always wrong. If waterboarding is torture, then it too must always be wrong. If it does not rise to the level of torture, then, he suggests, however repellent one may find it personally, its use may sometimes, as in the TBS, be justified. But this is not a helpful way to frame the issue. Rather than stipulating that torture is never justified, and then engaging in sophistry to show that some technique or other is not actually torture (and so may be justified), we should just look at all the techniques we are troubled by and not worry about whether they count as torture, so defined, or not. (And besides, as Digby says, what’s this obsession with waterboarding?)

So, here’s what I think. If you make the stakes in the TBS high enough, it is absurd for anyone to argue that you should not, in that case, engage in torture. I don’t think it helps the progressive cause to insist that, in the situations envisaged, one should not take the steps necessary to prevent a catastrophe. But there are two important things to notice. The first thing to note about the TBS (and my variants on it below) is that in these thought-experiments, we get to stipulate that doing X (torturing) will prevent Y (catastrophe). That’s built in to the example. In real life, to whatever extent situations approximate the TBS, there is unlikely to be any such certainty. One would be very unlikely to know whether torturing an alleged terrorist would be necessary or sufficient to prevent the bomb from going off. Perhaps the terrorist won’t talk; perhaps he will give us bad information; perhaps there is some other way to get the information. So, the TBS and other such thought-experiments, while useful in understanding the underpinnings of our moral thought, are unlikely to provide practical guidance in action.

The second, and more important, thing to notice is that similar reasoning applies to any action whatsoever that we think is bad. If you are faced with the choice of killing your own innocent child or letting 4 billion people be killed in an awful and painful way, you should kill your own child. (Again, of course, we are stipulating the scenario in question. It’s hard to imagine actually being in such a situation in which one knows for certain that killing one’s child is necessary and sufficient to prevent 4 billion deaths.) It’s horrid, but there it is. There is pretty much nothing you should refrain from doing at the cost of letting 4 billion people die in an awful and painful way. So, whatever the TBS shows about torture, it shows it as well about killing your own innocent child. The fact that in the TBS we are dealing with an alleged ‘evildoer’ (‘an evildoer doing evil’ as my friend Marimar likes to say) and that the action, torturing, involves extracting information which is instrumental in saving all those people from being killed, is really irrelevant. The principle at work is, when the cost of inaction is high enough (and fill in whatever counts as ‘high enough’ for you), do pretty much anything to avoid those costs (unless what you do is comparably awful). The Attorney General’s remarks to Congress to this effect were quite right (though he backed off putting it in terms of costs very quickly).

(By the way, you don’t have to be a cold-blooded utilitarian to think this way. Aristotle would surely have agreed. Perhaps Kant would not – but then he thought it was immoral to sell your own (already cut) hair even if the money you would get was the only thing that would save your life! Surely not all progressive bloggers need be rigid Kantians!)

Now, assuming you agree with me so far, does that mean we have all slipped into moral relativism? At the time of Mukasey’s comments, a lot was made of the fact that those on the right, who pride themselves on their moral absolutism and think that the left’s alleged moral relativism is the root of everything that’s wrong with the world, suddenly seemed to transform into relativists themselves.

In fact, moral relativism as it is usually conceived is irrelevant here. It is generally taken as a theory according to which what is right and wrong (or good and bad) is relative to a culture, to an era, or in the extreme, to an individual. What is the TBS meant to show that the rightness of torturing the terrorist is relative to? Not to a culture, an era or an individual. Rather, it shows (or may show – see below) that whether an action is right is relative to the full set of circumstances in which it is performed. But this is surely no more than common sense. Lying is wrong, we say. But not if the SS are after you and you have to pretend not to be Jewish. What this shows is that we cannot attribute moral features like rightness or wrongness to types of actions – lying, torturing, etc. – without qualification. What may be right or wrong without qualification is a particular action, not a kind of action: this person’s torturing that person under these and these circumstances. The TBS does not show that the attribution of moral features to particular actions must be qualified, or is relative to anything. So, to sum up this paragraph, the TBS might support what is called moral particularism – the view that what is right or wrong are particular actions with all their concrete circumstances and not types of actions – but does not, so far, support moral relativism.

In fact, though, one need not even agree that torturing the terrorist, or killing your innocent child, is right in the TBS and similar scenarios. For one might think that in such situations, one is confronted with a tragic dilemma in which one is forced to do something morally wrong – torture the terrorist or let the bomb go off; kill your innocent child or let the 4 billion people die horribly. When faced with such tragic choices (Sophie’s Choice), all one can hope to do is to minimize the harm that is done. So, to sum up this paragraph, one might say that torturing is always wrong, under any circumstances, and still agree that one ought to do it to prevent catastrophic harm just as one might agree that it is always wrong, under any circumstances, to kill your innocent child and yet still think that one ought to do it under certain circumstances.

Either of these ways of responding to the TBS seems to be a reasonable approach for a progressive. What emerges from both of them is that one cannot legislate in favor of torturing any more than one can in favor of killing one’s child. Like killing one’s innocent child, torturing will almost always, in fact, be the more harmful option that faces us. Situations in which one ought to do either of these things are likely to be extremely rare and wholly unpredictable. No sane person would suggest that we enact legislation that makes it permissible to kill one’s innocent child under certain circumstances. Likewise, no sane person should suggest that we legalize torture under certain circumstances. If and when some unfortunate person finds herself in a situation she thinks is a TBS, she will have to do the best she can, explain herself, and face the consequences if society doesn’t agree. That’s how it stands now with respect to killing one’s innocent child and it is how it should stand with respect to torture.