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Tuesday, December 20, 2005

Tortured argument: The ticking time bomb

One scenario bantered about is the ticking time bomb. The same legal team used to defend unlawful conduct will rely on this scenario to defend the Executive during impeachment. The scenario is flawed, has no merit, and has no legal foundation.

We discuss this scenario, illustrate why it is flawed, and discuss how this scenario is used to justify unlawful conduct. We discuss this flawed argument in the context of the NSA warrantless monitoring and the events following 9-11. The scenario is used as a flawed argument to justify unlawful action.

While you review this discussion, it may be useful to consider the two diagrams on this page. Also, you may wish to review the following ideas in the context of the unreasonable basis to argue for waterboarding. [Other topics related to the ticking time bomb scenario.]

* * *

There’s a scenario that people like to use to justify torture – the ticking time bomb scenario. The premise of the argument is that someone who has placed a bomb refuses to talk; if you don’t torture him, the bomb will explode. Bluntly, this argument is circular.

I wanted to spend some time discussing this argument to show:

  • Why it is a flawed argument;

  • Demonstrate the weaknesses of the argument;

  • Illustrate why the information – needed to justify this argument – are based on equally dubious premises;

  • Why the situation –- that there existed no information, thereby mandating torture -- would never occur;

  • What other information – which would exist if this situation were to occur – would exist, and there would be no basis to torture someone; and

  • How the scenario fits in with today’s world of NSA domestic spying, the Patriot Act, WMD, and the post 9-11 world.

    * * *

    Let’s review the assumptions behind the premise: That someone “we just know is involved and has the information” refuses to cooperate – and we have to torture them. The assumptions behind the scenario – mandating torture – hinge on the following flawed assumptions:

  • A. We know someone has information;

  • B. There is no other source of information; and

  • C. The information we have that they are “the only one who knows” is reliable.

    Each of the above three assumptions are flawed. First, let us explore the premise that the person we are holding “is the only one who knows” where the bomb is.

    Put aside the issue of the bomb for the moment, and focus exclusively on the information this person supposedly has. Think about what is being asserted: That somehow –- we know -– that this person knows something.

    How can this be –- how can [a] we know with [b] complete certainty that [c] this person is the [d] only person who knows [e] this information?

    To conclude that [c] this person is [d] the “only one” with [e]“this information” is only possible if we have other non-mentioned, but critical piece of information: That we have found out about [e] this information about [c] this person from . . . wait for it . . . [f] another source.

    * * *

    The fundamental flaw with the entire “ticking time bomb scenario” is the false assumption that “the person we are proposing to torture” is in an isolated world, has no interaction with anyone else, and that they have failed to discuss this issue with anyone else.

    If this is true –- that they have not discussed the specifics with anyone, thereby resulting in our facing the “dilemma of not knowing something we need to know” –- then we have to ask ourselves:

  • A. If they are the “only one” with this information – how did we learn of this?

  • B. If there is [1] a “ticking time bomb” that is [2] about to go off in a [3] specific time period –- how do we know this?

    In other words, the entire scenario -– “mandating” that we consider using torture –- is premised on us concluding information that could only be found from a cooperative witness: Someone else, not the person we propose to torture.

    Yet, this is at odds with the premise of the argument –- that we have “only one person” who knows this. Are we saying: “The person who refuses to tell us details about the bomb” has told us everything else without torture:

  • There is a bomb;

  • It is about to go off;

  • It is about to go off at a specific time;

  • But the person refuses to say the last piece of information – where it is located;

    Question: Why would someone – apparently willing to talk about everything else without torture -- suddenly clamp up?

    If we are told – “they are crazy and can't trust them” –- then why would we believe the other details –- that there was a bomb?

    * * *

    Bluntly, at this point, the investigators would have something very simple: They would have a specific person in front of them, who could be traced to a specific location – the obviously came from somewhere, were going somewhere, and did have minimal interactions with others – to at least review the full situation:

  • Are there bomb-making materials in the person’s control;

  • Does the person have bomb-making residue on their clothing and hands;

  • Is there evidence of bomb-making material where they travel, spend their time, work, or reside?

    * * *


    It may be useful to organize the issues into various groups. Here is a checklist for discussion on this scenario.

    * * *

    Challenging The Ticking Time Bomb Scenario

    The Ticking Time Bomb Scenario, when presented, should be challenged, if possible. This section identifies a list of questions and issues that the public, educators, and policy analysis may wish to raise when the Ticking Time Bomb Scenario is raised.


    __ Are those who advocate imposing this abuse willing to assent to the same standards of accusation and abuse

    Constraints __ Why are we ignoring rules – the fruit of reason – when we are less inclined to use reason, but most in need of thinking from calmer periods

    Risk ___ What is the chance of error: That someone has been set-up to make it look as though there were involved, but this was a ruse?


    Responsibilities ___ How will the backlash based on an incorrect decision undermine public confidence in the leadership, supervision

    Responsibility ___ Are there real consequences if the accusations prove incorrect

    Responsibility ___ Is there a chance that a false accusation (someone misleading us about who does or does not have information) will go unpunished; and is this chance of no consequences factored into whether we do or do not believe the information

    Responsibility ___ Are we considering the consequences of what this decision involves – expedience at the risk of giving up future options; are we accepting the responsibilities that attach to either approach, or are we making this decision with the false believe that there are no responsibilities with either decision, or that the responsibilities are less with one decision

    Responsibility __ Have we incorrectly downplayed the real responsibilities that attach with this approach

    Responsibilities __ Are we attaching with this decision the real resources to prevail and implement the full range of responsibilities that attach with this decision

    Surveillance Oversight Plan

    Surveillance plan ___ What it is about the person that were are monitoring, and got the original information about the planned event, that would warrant the initial monitoring; was there something else that we could look at to determine what was going on, who else is involved?

    Surveillance legacy ___ What has been the track record of the surveillance

    Surveillance plan ___ What original conditions triggered the initial monitoring

    Surveillance legacy ___ What information have we gleaned since the initial monitoring suggesting that there is a lot of activity, but we are unable to confirm the information

    Surveillance plan ___ If we have acquired information through electronic surveillance that someone has done something, but we have not been able to monitor them closely enough to get the details, why weren’t the electronic surveillance supervisors informed of the increased risk and additional resources allocated to monitor the situation earlier as it was developing

    Surveillance plan ___ Why should we believe, given the initial decision to engage in surveillance and monitoring, that there is no other information related to where they traveled, who they spoke to, hat they acquired, or what their plans were

    Surveillance plan ___ If the person, despite electronic surveillance, was able to do all these things without detection, what does this say about the basis for the original monitoring; and the decision on whether to detain or not detain this person earlier

    Surveillance plan ___ If there were factors that triggered the original surveillance, what is the basis to believe these original planning assumptions were linked with a real threat, not mistaken belief, or accusations based on a desire to retaliate, not solve a problem

    Surveillance legacy ___ How do we explain or vast information related to who they are, but no information related to planning activities – why is there an inconsistency; is the inconsistency explained by a problem, or that there is no real problem

    Surveillance legacy ___ Why do we have vast information about useless details, but no information about what we want to know – is it possible that the person we are monitoring is not engaged in any illegal activity; and the basis for the increased monitoring is our confusion, and poor management, or desire for a quick solution rather than a credible solution.

    Surveillance review ___ How many of the initial assertions – used as the basis for increased initial surveillance – are based on flawed, incorrect, or invalid information

    Surveillance review factor ___ Why is the oversight system quick to accept information from abuse, but slow to accept voluntary submittals of information that are more reliable

    Surveillance supervision ___ How do we explain a management system that is slow to respond to real problems, but quick to respond to imagined problems

    Surveillance supervision ___ Why isn’t the same level of scrutiny, burden, and proof – as loosely applied to those we propose to abuse – not similarly applied to those who are directing that others be abused

    Surveillance oversight __ Why are there two standards on the monitoring: A lackadaisical attitude toward monitoring – that of monitoring and gathering information that is not useful; but no method to collect information that is valuable – why should we believe that that activity is real given the increased monitoring produces less valuable information

    Proponent Issues

    Proponent adverse consequences ___ Why would abusers publicly claim “success” using abuse, yet fatally admit that they had engaged in illegal conduct

    Proponent discipline ___ What effort has been made to determine whether the abuse was inflicted, and whether the people who inflicted that abuse have been appropriately disciplined

    Proponent veracity ___ If there has been no discipline on the person making the claim, why should we believe that the abuse occurred; or that the claimed benefits of abuse (that of producing information) is real

    Proponent illegal testing, experimentation ___ Is there any way to independently check whether abuse has or has not produced better or worse information

    Proponent illegal testing ___ What is the basis to believe there have been “scientific studies” on this method of getting information, when such experimentation is illegal and contrary to the Nuremburg Code?


    Scenario application __ Are the set of conditions – which narrowly have been used to argue for abuse -- been inappropriately expanded to include any situation, however disconnected they are from the original, narrow situation

    Scenario plausibility __ Why is every possible argument against engaging in abuse challenged with more convoluted exceptions and rationalizations to engage in abuse – at some point, it’s more believable that there is no bomb, rather than in the low probability that all the conditions have been conveniently aligned to compel only one decision: Abuse.

    Urgency Issues

    Urgency factors ___ If we have enough time to translate the communication, only find one person, why should we believe there is an imminent problem

    Urgency factors ___ What is the backlog of the communications related to this electronic intercept

    Urgency factors ___ Is it possible that the communication occurred long ago, and the planned event is far in the future

    Urgency factors ___ If the event is about to occur, why should we believe it will be easier to find the person, than find the equipment used to place the bomb?

    Urgency factor ___ Even if we were to abuse someone and get information, would it take longer to check the possibly wrong information

    Urgency factors ___ Why is there an urgency on action, but not an urgency on considering whether there is or is not a problem

    Urgency factors ___ Why should we believe the time constraints involved

    Urgency factors ___ What is the basis to conclude that the assumptions about the situation are or are not reasonable

    Urgency factors ___ Why is there “time to abuse” but no time to consult with other sources related to the electronic intercepts, or other communication related to the planning

    Urgency factors __ How can there be an imminent time limit on something that supposedly occurred (a) during increased monitoring, and was subject to increased emphasis; yet, (b) There’s lower certainty over what was happening.

    Urgency factor ___ If we have enough information to now there is an imminent event, why are we bothering to talk with those who are involved, why not talk with those that the person has interacted with, and may be in the path of where they have traveled

    Urgency factor __ If there is time to review information, gather facts to make accusations, why is there no time to consult an independent judge who is paid to make informed decisions?

    Urgency factor ___ What is this person’s motivation to publicly communicating information that would call attention to an imminent problem; why would they not silently plan and implement their objective, as opposed to disclosing to others what may be about to happen


    Certainty ___ How do we know this person has this information

    Disinformation ___ If someone is intent on exploding a bomb, would they not have an interest to share incorrect information so that personnel went to the wrong location

    Allegation nonspecific; defendant specific ___ Why is the source of the information (the person making the accusation that someone else has information) able to make accusations based on non-specific evidence, but is able to make a specific allegation against a specific person

    Information veracity ___ Why are there two standards on belief: Believing questionable sources, but not believing those who have been accused on the basis of false evidence.

    Information veracity ___ Why should we believe that they have information, but we have no evidence how that information was obtained, created, acquired, disseminated, collected

    Information inconsistency ___ How do we explain (a) we supposedly know that the person is working alone; and may have done something; but (b) we have no information about what is or isn’t happening

    Information timing ___ Is there a reason that the person making this communication has disclosed information related to a specific planning event?

    Information credibility ___ Is the claim, plan, or design wishful thinking, a desire, a sense of frustration, and unrelated to any real activity or specific action

    Information credibility ___ How can we have two different scales: A low burden of proof on whether they do or do not have information; but a high level of proof on whether they are or are not innocent of doing anything.

    Information __ What is the chance that the evidence has been fabricated; or the assertions that they know something is based on fabricated evidence.

    Information ___ What other information are we relying on to conclude that this person is the only one who has the information

    Information ___ What if the communication is a hoax to distract resources

    Information ___ Why should we believe this information

    Information ___ If there was electronic monitoring, what other documents, records, communications, or coordinating activity was there

    Information ___ How do we explain the information used as the basis for the original monitoring, but no information related to the details, plans, and other activities to put this plan into effect; how do we explain the inconstancy between the (a) time when there was limited monitoring, but vast information; with the (b) increased monitoring, but no additional information. What is the reason that the original methods of collecting information are not being used, as opposed to the current methods which produce no better results?

    Information ___ What is the reason that the original transcripts of the electronic intercept cannot be reviewed for other information

    Information __ Is here nobody else with insight into what this person has been doing, how they have spent their time, who they interacted with, or what they have been doing

    Information __ Can we corroborate the information


    Defendant right to challenge ___ Is the person who supposedly has the information able to challenge the claims, assumptions, or assertions of the person claiming someone else has information

    Defendant inconsistencies ___ What is the basis to have two arguments about the same person: That they are mentally competent to provide information; but they are not mentally competent to trust them to cooperate?

    Other alleged defendants ___ What is the reason we cannot discuss the issue with all people who are involved with the communication

    Defendant___ What is the basis to assert that this person has the information

    Defendant ___ What is the basis to assert that this person is the only one who has the information?

    Defendant ___ How do we know that this person has the information

    Defendant ___ Does the person who may have information live in an isolated world

    Defendant ___ How did we come across this person

    Defendant ___ If the person (who has been accused of having information) is unable to present a challenge to the accusations, why should we believe that the basis for the decision (to target them for abuse) is based on something that is real

    Defendant ___ What physical evidence do we have that says the person that we have in custody is linked with what is supposed to happen

    Defendant ___ Is there a reason that we should believe that the person we have detained knows something, has taken action, but we don’t have the information related to the details of that activity

    Defendant ___ Is there no other information about their living arrangements

    Defendant ___ Who else does the person interact with; if they are alone, then what is the basis to say that they have left evidence, or communicated a plan; why are we not discussing this issue with someone else they have interacted with

    Defendant ___ Have we considered that their initial refusal to cooperate has nothing to do with guilt, but a desire not to do what they are unable to do: Provide information

    Defendant __ What is the basis to assign a numerical probability to the chance that they have information, but are not cooperating; as opposed to the chance that they are innocent, but we assume their non-cooperating is because of guilt.

    Defendant ___ What information do we have about their planning, or other activity indicating that they know something

    Defendant Planning Factors

    Planning factors ___ Are the claims about what they might know consistent with what they most likely know given the required planning, physical constraints, and other planning factors to carry out the event: Is there sufficient cooling for the proposed

    Planning ___ If there is specific information of an event, how was the information transmitted: What was its origin; what was the path the information traveled; who was the intended receiver

    Planning ___ How were the planning activities carried out, yet there was some sort of electronic monitoring, but there is no information on who else was involved – how can we have a basis for early monitoring of something/someone, but no information from that monitoring that will solve the problem, only information that will create more problems?

    explosive device; do the people have the required planning documents and approvals in place to put the plan into effect

    Planning ___ Who else lives in the neighborhood where this activity is supposed to occur


    Source motivation ___ Is the source of the accusation an anonymous law enforcement tip, making an accusation based on a grudge, desire to get event, or hopes to retaliate against someone for an unproven accusation

    Source motivation___ What is the reason that they are willing to make a specific accusation against someone else, but they are not willing to disclose specific information about the source of the information

    Source motivation ___ Is the objective of the abuse not to acquire information, but to hide the source of the original information – the electronic monitoring

    Source-defendant interaction ___ What kind of interaction does the person (making the accusation that someone else has information) have with the person they are making the accusation about

    Source history ___ What is the history between the person who supposedly has the information and the one who is accusing them of having this information – have there been previous claims that the accuser has engaged in misconduct, abuse, or other conduct which violates established policies, procedures

    Source focus ___ What is the reason for not putting attention on those who are making the accusation that this person has information

    Source certainty ___ If this other source “knows” that someone has information, how do they know that this second person has the information?

    Source certainty ___ How does the person (making the accusation that someone has information) know with any certainty that someone else has information

    Source credibility ___ Why should we believe this other source

    Source credibility ___ What is the credibility of the source who claims they know someone else has information

    Source veracity ___ How does the person (making the accusation that someone has information) know that someone else has information

    Source ___ What is the reliability of the source saying that this person is the only one with the information

    Source ___ How did we learn of the information

    Source ___ What is the source of the information

    Source ___ What outside sources are we relying on to state that this person has the information

    Source ___ Is there a reason that the sources, which assert that this person has the information, are unable to provide additional information

    Source ___ What is the method by which we have been informed that this person has the information

    Source ___ Why isn’t the same method – which tells us this person has the information – leading us to other sources of information

    Source ___ What is the source of the claim that this person has information

    Source ___ What is the source of the claim or information that someone has information

    Source ___ Why are we willing to defer to a source that leads to an unsupportable outcome – but are unwilling to rely on a second source that would dissuade us from taking adverse action?

    Source ___ What other information do we have about the source of the claim

    Source ___ How did the person (making the accusation that someone else has information) come across the information, or learn that a particular person may have information

    Source ___ Is the person (making the accusation that someone else has information) making this accusation based on specific information, a hunch, or some other basis?

    Source ___ What is the source of the original information that something is about to happen – what is the reason that the original source of this information cannot be discussed, consulted, reviewed, or checked against other confirming information, or other planning events

    Source ___ What is the basis to conclude that someone (who is making specific allegations based on vague claims) should be believed more than someone who is simply accused, but has no opportunity to challenge those claims

    Source ___ If the person (who is making the claim that someone else has information) will not cooperate with questions, why should they not be abused to get the information they will not reveal?

    Source ___ Is there anyone else who can help?

    Source ___ If there is nobody else who will assist, then how do we explain how we got the information – that this person has information: What is the source of the claim that this person has the information; how did we get that information; who was the third person involved in the communication suggesting that this person has information?

    Source ___ What is the basis for this person’s accusation that they know someone else has information

    Source ___ If this source is confident that they have information, why are we bothering to discuss this issue, and not simply act on the available information we have from the original source

    Source ___ If there is certainty that this person has information, but no method to corroborate that claim, why should we believe that the person really has the information?

    Source ___ Why are we relying on sources of information that cannot be timely corroborated

    Source ___ Is it reasonable to conclude that this person (who someone says has information about an impending activity) was able to participate in this event, but there is no record of any other interaction by anyone else; yet all this activity occurred, but there is an imminent problem – how could all this activity occur, but there be no prior record, communication, or interaction – how does this appear out of the blue?


    Results ___ Why should we believe claims that there have been successes based on the use of this abuses

    Results ___ How was it shown that the abuse did yield reliable information

    Results proponents claims ___ What were the motivations of those claiming that they engaged in abuse


    Environment ___ Are there other methods of organizing governance, oversight, and leadership that will more effectively respond to problems, and less likely trigger a violent approach to problem resolution

    Environment ___ What are these responses, reactions, and assumptions saying about the original system which supposedly triggered the response

    * * *

    Implications for Accusors

    I appreciate the issue facing us: That potentially, there are ethical situations where torture may – in theory – be discussed as an option. Let’s put aside the issue of whether the person we are proposing torture is around.

    Supposedly, we have been told – perhaps by another source – that the person we have, or propose detaining, has information about a bomb. Think only about the person who has told us about the other person we propose to detain:

  • A. What is their credibility

  • B. How do they know what they tell us

  • C. Why are they certain that the other person is involved?

    * * *

    The flaw with the ticking time bomb scenario is that it presumes – incorrectly – that the person we propose detaining live in a world without any interaction with another person.

    If this is true:

  • A. how did we get in contact with this person?

  • B. Who originally had contact with them?

  • C. How do they know there is a bomb?

  • D. Why should we believe that they are the only one who knows?

    * * *

    The danger with the “ticking time bomb scenario” is that presumes – out of thin air – that we can make an informed decision about a specific individual – that they have the information we need – but the scenario fails to discuss the other factors: Why is it reasonable to make this presumption without any information about

  • Where they live

  • The nature of their living arrangements

  • The evidence along the routes that they travel, live, work

  • Who else they interact with

  • Who may have observed them moving, traveling, and transporting the materials

  • Who they spoke to in order to acquire this information

    * * *

    Regardless the scenario-assumptions, the flaws with the scenario are as follows:

  • The scenario incorrectly assumes that somehow we have superior knowledge about the nature of the person we are talking about, but no information to trace their route from [a] where they acquired/fabricated the material to [b] the location where they placed the material

  • The scenario incorrectly assumes that we have “superior knowledge” about what they know about eh situation – but no information about the information we want. This premise fails to account for the required contact the person must have with [a] the earth, [b] travel route and [c] some other person.

    * * *

    At worst, the “certainty that we have” about this person’s status may be the fruit of torture. Again, the objective here isn’t to say that the person does or doesn’t have information. Rather, it is to illustrate that – if we are to believe they are the one with important information – their knowledge, acquisition, and credibility with respect to that knowledge hinges on other connections, interactions, and evidence that need not be gleaned through torture.

    The entire scenario is based on the false premise that -- by accusation alone -- we can assert with sufficient confidence that anyone we accuse is guilty of having information; and that if they do not give the information to us, it is proof that they are holding the information. That is a circular argument.

    If the person has been falsely accused based on false evidence, then no amount of toture will yield truth, only what they think we want to hear.

    Consider the case of Mr. Nuckols who was interrogated on the basis of an error, but accused and abused. Under the "tikcing time bomb scenario," an innocent man could have been executed because of an error, not because of a threat. Violating someone's right doesn't remedy the error, merely compounds the abuses.

    This circualar logic is what inspires the Iraqi insurgency to fight and prevail over American ground forces in Iraq.

    * * *

    My concern is that the scenario – as it stands, as a basis to “justify” an outcome, namely torture – is premised on assumptions that are narrow, arguably invalid, and not consistent with a real life scenario.

    I would hope in the future that if you or someone you know if faced with this theoretical scenario – whether it be in training or in discussions – that you force the people proposing this scenario to break down the situation, and consider:

  • A. Are we making reasonable assumptions about what this person does or does not know;

  • B. What is the basis to assert we know this person is the right person – where did we get that information; why should we believe it;

  • C. If we have “other sources” that this person is the “right person” for this information – have we going back to the original source to determine how they know what they are talking about?

  • D. Once we go back to the original source of the information that “the person before us knows something” – we can then ask this other person questions to get answers about: When were they told this information; how do they know; are there other sources of ways to find out whether the person we are holding is the right person; and what is the basis for the time-limit that is behind the scenario we are being provided?

    * * *

    Scenario Assumptions Should Be Challenged

    I have a hard time with the scenario in that it presumes that “all sorts of activity is occurring” [someone placed a bomb; they have a specific time in mind, someone else knows this, and we have been informed of this] but we are not allowed to go back to the original source that gives us the information.

    If we are told, “We can’t go back to the original source” – then this raises doubts about the veracity of the information:

  • If the source will not be identified, then what risk is there to their reputation if they are proven wrong? None.

    Another way to ask this is the difference between two sources [1, 2]:

  • Why are we inclined to believe information about “there being a bomb” from [1] a source that may be questionable;

  • But were are unwilling to believe [2] someone who may have been falsely accused when they deny the facts as having been charged?

    The issue is: Why are we willing to defer to a source that leads to an unsupportable outcome – but are unwilling to rely on a second source that would dissuade us from taking adverse action?

    The answer is related to what we are inclined to do in the vacuum of facts: Violence or reason.

    The way we drift – either using violence or reason – tells us something about the logic, or lack thereof, of the society, leadership, and Congressional staffers who are advising those in charge.

    Bluntly, it would appear that a society that condones torture using the above scenario, have Congressional staffers who are inclined to make poor logic diagrams; raising reasonable questions about how they possibly ranked in the Law Aptitude Tests – the aptitude tests are simply logical arguments.

    Another way to look at this: If society can be thrown a scenario such as the one above, and the scenario – despite its flaws – is blindly embraced – this tells us something about the nature of the decision making, the inclination to explore premises, and whether the society can truly stand up under the weight of passion, violence, and lack of reason.

    If the overwhelming majority of Americans are inclined to buy into the above scenario, not explore the nuances, then we have a problem. Fortunately, we have the wise analysts in the legal profession – they are called Judges and can see through this non-sense.

    However, the problem Americans have is if they – in their desires to rush a decision – remove the Judicial branch and the wise Judges from this analysis.

    In other words, the problem with the American society under the Bush Administration is that it relies only on legal arguments that support pre-determined outcomes – and refuses to expose that argument, however flawed it might be, to the rigorous scrutiny of both the Legislature and the Judicial Branch.

    This is the heart of checks and balances.

    This President – by having his minions propose the above scenario – is hoping to shift the issue from [a] whether we are a society based on prudence and reason – to [b] whether the civilian population can be manipulated to assent to government decisions that mandates torture.

    A society like America that uses the above scenario, and refuses to explore the logic flaws in that argument, is simply demonstrating the flaws of its society:

  • It creates situations to justify outcomes, regardless their legality, prudence, or other options. It narrowly defines a scenario in order to get people to agree to something that should not be assented to

  • It’s planning is not robust and incorrectly based on the assumption of success. It creates a narrow definition of what might narrowly appear to be “the only option,” without exploring the other issues

  • It’s planning is imprudent -- the premises are based on incomplete and invalid assumptions

  • The law is secondary to outcomes. The range of options available, however valid they may appear, are contrary to the law

  • The outcomes of that action – however valid they might be in the flawed scenario – are dubious; hence, the planned risk mitigation is insufficient.

  • The law takes a second seat to both the means and the ends -- The range of acceptable options of that dubious scenario are narrowly designed to arrive at a dilemma where the only “approved” solution is one that is contrary to the law

  • The investigators and decision makers assent to dubious evidence -- The range of options the public is given does not include a detailed discussion of the other factors and issues: Sourcing, other avenues of information, alternative evidence.

  • The leadership fails to look at other options to determine the status, evidence, and situation -- The scenario fails to address the other logical implications – that there must be some “source” of this information that we know for certain this person is the only source of what we want to know

  • The society is more interested in making quick decisions, when experience tells us that fast decisions, in the vacuum of facts leads to imprudence. The scenario is used to get people to quickly react, work under a false time limit, and fails to show us how the time limit we have been provided is not also linked with some knowledge about that nature of the bomb, it’s location, how it got there, who else may have seen it – information that we supposedly could get.

  • The society is more willing to listen to sources that are consistent with desired outcomes, regardless the facts, veracity, or credibility of that source, the proposed options, or the resources required to implement that solution.

    If we “are sure” that the person we have is “the only one” who knows this – there must be another source that can confirm that information – so, why aren’t we talking to the person who is the source about “all the stuff we want to know about – stuff that warrants the concern in the first place” rather than wasting our time talking to someone who may simply have been accused of something they know nothing about?

    As you read the above, you’ll have some other examples come to mind:

  • Downing Street Memo

  • The decision to grant the President authority to use force

  • The “confusion” over whether “supporting an option to use force” is the same as “declaring war” or “being for the use of illegal force in the absence of an imminent threat.”

    This is a nation of laws. We are not forced to choose between victory and defeat abroad; but whether we have the rule of law or tyranny at home.

    This tyrant enjoys pretending the stakes are high abroad – so that the civilian population will quickly assent to have their rights and liberties given up.

    This is the same as the quote I wrote, which Barbra Streisand was kind enough to recite before the DNC: “Beware the leader . . . “

    It’s all the same non-sense: Bush is using non-sense to justify destroying the system of checks and balances; and the public, during the holidays, is given religious symbols so that Bush will have “verbal armor” to put more pressure on the Congress to assent to more tyranny:

  • Violate the law. The FISA act has a specific provision relating to “Wiretapping During Wartime” -- that mandates within 15 days of war starting, the Congress be informed. Here we are 4 years later, and the President wants us to believe that he’s the war President.

  • Use 9-11 as an excuse. The problem with relying on 9-11 as the excuse for NSA intercepts in 2005 is – in the interim – the President has gone to Congress to request the use of force in Iraq. If the President, in the wake of 9-11 “didn’t have to ask for approval to violate the FISA act,” then why did the President go to Congress to ask for something else he “didn’t have to ask for – and could have relied upon in the wake of 9-11” – the authority to use force?

    Once the President breaks the link between 9-11 and his actions – by asking in 2002 for the authority from Congress to use force against Iraq [note: the legality of the use of that force another issue] – the President can no longer rely on 9-11 as an excuse not to go to Congress between 9-11 and 2005 in re FISA and the NSA intercepts.

    * * *

    Let’s get back to the scenario and the ticking time bomb.

    Again: The issue is – Why are we willing to believe one source – the information pointing the finger at another -- over another – the accused?

    If the accuser – the one who says, “That person knows but refuses to cooperate” – emphatically knows this, then why not go after the accuser and get them to talk about “how they know” and “what makes them so sure” and “are there other sources of information that can confirm”?

    If they refuse to cooperate – then the issue becomes – why would they take the time to come forward to “help out,” but suddenly “no longer want to help out”?

    There may be a plausible explanation.

    However, the more likely one is that they wish to assert a fact without taking responsibility for the adverse consequences.

    That is fine. But the issue migrated from [a] whether we do or do not torture someone; to [b] whether there is any real evidence behind the basis to point the finger at someone.

    Bluntly, there’s little evidence to suggest that the allegation is credible – or that the arguments proposed – that we have no other option, therefore we must torture – have any merit.

    * * *

    The scenario is also flawed because it assumes the individual before us has had no interaction; that there is no second source of information; and that other corroborating evidence not relying on torture does not exist

    If we are “sure” this person – who some have proposed torturing – has the information – then that “second source of information used to form that opinion about the potential torture-target” is simply that – a second source that is arguably one that will cooperate and lead us to other avenues.

    The issue then becomes – once we find this information using the second source -- are we in a position to corroborate that information?

    If not, then we have no case – merely an accusation without evidence.

    Bombs don’t appear out of nowhere.

    Accusations without evidence – and excuses to torture innocent people – are the fruit of non-sense.

    There’s no plausible scenario that would justify torture. Rather, the only scenario is one where people have given up using their brains. That’s the sign of a flawed society.

    America – your Congress is full of idiots. They’re gradually waking up. But this tyrant plans to continue the non-sense to consolidate more power.

    The real threat to your way of life is from the White House, and the assenting toads on the Congressional Staffs. They’ve gone to law school, but like Mr. Yoo have flawed legal arguments to justify illegal conduct.

    That’s not the kind of leadership you need or can afford.

    You deserve better. Your leadership is not to be trusted, nor are their staffs. They’ve let you down and assented to tyranny.

    * * *

    People who rely on this scenario – as a basis to discuss the ethics of torture -- are using it as bait to test your ethics.

    In the post 9-11 world, where reason is a rare thing, the scenario is easy to use as an excuse to engage in abuse.

    In another way of saying this: Stupid people who are unable to reason – and inclined to abuse, not use their mind or the rule of law – will rely on this “argument” because nothing they say can justify the pre-determined outcome they want – an excuse to justify abuse without being held to account.

    * * *

    The world we find ourselves – one that we have collectively assented to and allowed to exist in the post 9-11 world – is one where [a] the law is one thing; and [b] the country focuses on conduct in terms of whether it is effective, not legal.

    This is another way of saying that in order to avoid assenting to the rule of law – as this President is doing – he focuses on the “effectiveness” of his actions: Spying, rendition, and torture.

    Yet, we are a nation of laws. Our conduct must assent to the rule of law. Congress, when it allows the debate to shift from [a] the legality of the conduct; to [b] whether the conduct is effective or not, fails to take responsibility for the issue – that we are focusing on outcomes, not the legality of that result.

    * * *

    The President continues to point to 9-11 as the excuse to ignore the FISA in re NSA. This argument is problematic.

    If the President does have the authority to use this wiretapping power “because of its link to the Congressional approval after 9-11” – then there was no reason the President should have gone to Congress to ask for approval to use force in Iraq.

    However, the President did request Congressional involvement in re Iraq despite what he refers to in 2005 as the blanket approval from Congress to do what he wants.

    The problem the President has in 2005 is that he argues the NSA monitoring in 2005 is linked with 9-11 – but that “he need not ask for Congressional approval. That argument is flawed:

  • He’s shown the linkage between 9-11 and subsequent events in 2002 require Congressional approval

  • The linkage between 9-11 and 2005 actions are too distant

  • One cannot argue that events in 2002 are not related to 9-11 – mandating Congressional involvement in the Iraq decision, and use that as verbal armor to avoid Executive branch accountability for the results -- while at the same time suggesting events in 2005 are related, not requiring Congressional review.

    The law states otherwise: Within 15 days of combat, the President has to get Congressional involvement. He has not made a fair showing that he’s met this requirement.

    Nor can the President timely show that, once the NYT discussed the issues in 2004, that the issues about “leaks” were timely provided to DoJ for investigation. Rather, despite the “leak,” the White House continued to negotiate over the NYT findings. If this were a bonafide leak about something that were permissible, it would be more convincing if the White House had shut down discussion and referred the matter to DoJ.

    The evidence points the other way – the White House was not concerned about the leak, just in the publication. This suggests the NYT found information which the White House should know about, but was contrary to the RNC interests, and not something that could credibly face a court gag order over state secrets.

    Recall, rightly or wrongly, DoJ got a gag order on the information from Sibel Edmonds. Despite this option – and the alleged seriousness -- we see no effort in 2004 to get a gag order on the NSA information. The failure to timely act on the leak that is – as the President would call it in 2005 – unacceptable, is not persuasive or compelling.

    We judge the information could not credibly be classified or remain secret – rather, it is evidence of criminal wrong doing which the President hopes to cloud as “part of the war on terror.” But we are too far from 9-11, and Congress has already had the time to review other matters.

    The President’s argument fails.

    This matter – the issue of NSA monitoring without apparent compliance with FISA -- should be referred to a special prosecutor to investigate.

    * * *

    Notice who you are dealing with in this Administration -- These are the same people who, when the ship in 1975 off the coast of Vietnam were attacked, failed to take responsibility. Today, we find out that the story was fabricated as an excuse to justify invading Cambodia.

    Rumsfeld and Cheney were DoD and White House the players in 1975 – and they’re still around, messing things up. Ignoring the laws. Making excuses for disasters. Making up stories. That’s why the didn’t want the stuff about 1975 surfacing in 2005 – yes, it’s relevant to what is going on in Iraq – more made up stories, fiction, and excuses to engage in unlawful conduct.

    What seems curious in 2005 in the wake of the NSA disclosures, is that the White House did have time to talk to the New York Times a year ago about the NSA conduct – taking the time to ask that it not be published – but doesn’t have the time to do the same with Congress.

    Arguably, if the issue was “so sensitive” there should have been an investigation into the leak a year ago when the NYT first raised the issue. We judge, in the absence of a timely investigation that the issue wasn’t the leak, but that the public would find out about the White House conduct contrary to the FISA – mandating during times of war the Executive notify Congress within 15 days of the action. It appears the President ignored this requirement.

    Preserving our liberties doesn’t mean ignoring the law.

    We’re safe without the Patriot Act – the law gives the FBI the power to do what must be done. If the President needs constitutional powers, then he should openly work with Congress to get that authority, not “do what he wants”.

    Before we had the Patriot Act, we had the FISA which permitted NSA to intercept Osama Bin Ladin. Whether the Patriot Act does or doesn’t exist is irrelevant to whether FISA exists or applies – FISA does exist, it does apply – and the President has ignored the provisions – Wiretaps During War Time – self-evidently applicable, but ignored, during wartime.

    It is another matter whether that war is legal.

    * * *

    Added: 03 Jan 2006 -- For reference [Cross Posted]

    We live in a remarkable world when the President can freely choose to ignore, interpret, undermine, and violate laws at his own discretion. This President fails to meet his oath of office of preserving the laws of the land.

    There is no foreseeable scenario -- but one based on fiction and tortured arguments -- that would justify the President's proposed-potential use of torture. I read with interest and alarm the "ticking time bomb" excuse to justify torture.

    A template for this conduct is well stated in the Declaration of Independence. Despite the "outing" over the NSA domestic wiretapping issues, this President's conduct continues: Exercising the powers of all three branches of government, in contravention to the Federalist #47. Ref

    The flawed White House excuse[Ref: Boston Globe]

    QUOTE: But, the official said, a situation could arise in which Bush may have to waive the law's restrictions to carry out his responsibilities to protect national security. He cited as an example a ''ticking time bomb" scenario, in which a detainee is believed to have information that could prevent a planned terrorist attack. ENDQUOTE RefRef

    This "excuse" is problematic as I discuss here. In short, for someone to have "information that we just know they have," we must've had an independent source -- why aren't we going after the source that is [A] pointing at the person-to-be-tortured and [b] saying, "This person knows, we need to torture them"?

    The White House statement indicates the President plans to [a] violate the law; and [b] go after the wrong people: Those accused by possibly anonymous sources, with axes to grind, or also relying on torture-induced-admissions/confessions/accusations. This is at the heart of Padilla's problems with DoJ -- a Moroccan torture session falsely linked Padilla; and now DoJ changes their position because they don't want the court to know the original basis for Padilla's detention was based on [a] NSA data unlawfully acquired; and [b] Torture-related evidence from Morocco. Ref.

    Never mind the fact that the Padilla case is flawed -- as evidenced by the 4th Circuit's grating, justified attack on DoJ Ref -- and there remains no admissible evidence to justify the original cause of action; yet the writ of habeas corpus is ignored.

    Even former NSA's Tice wonders how many Americans have been tortured in secret detention: "U.S. citizens are being arrested and thrown in jail with the key being thrown away, you know, potentially being sent overseas to be tortured" Ref.

    Who's doing this? The President of the United States.

    DSM and Iraq WMD: Same Conduct planned for abuses

    One cannot credibly argue they are relying on "flawed arguments" to justify unlawful action. However, despite this President's similar conduct -- twisting the laws, making up facts, and creating excuses to "justify" an unlawful invasion of Iraq without an imminent threat based on illusory evidence the NSA knew didn't exist -- this President proceeds with the full expectation that his excuses, sophistry, and hand waving will go unchallenged.

    Foreseeable the President intends to violate the statute

    The "ticking time bomb-excuse to justify violating the ban against torture" is problematic in that it has no merit, and as seen from the discussion, is merely an excuse to:

  • Induce Congress to assent to terms the President has no commitment to comply with;

  • Rely on illusory excuses to rationalize a pre-existing policy to engage in abuse, contrary to the law; and

  • Engage in unconstitutional judicial-powers of "asserting what the law means" without regard to the specific Congressional intent that it prohibits the planned abuses. [Ref via Conyers]

    * * *

    What you can do: Pass this list of phone numbers, and get the media and your friends to directly call these fascists in DC.

    What's going to happen if you don't? He'll do it again -- Watch . . .