[*293] The normative force that seems to emanate from the hypothetical case of the nuclear terrorist cannot be invoked as a justification for an actual policy to engage in torture and other abusive interrogation if the hypothetical does not track the real-world problems. To demonstrate this, I will deconstruct the nuclear terrorist hypothetical that has convinced so many that torture is thinkable. Hiding behind this hypothetical is an implicit consequentialist argument that torture would be justified if the consequences of not torturing were serious enough. Torturing one person to save thousands - even hundreds or perhaps only two people - appears justifiable if the balance of consequences in terms of lives saved, taken alone, determines the moral acceptability of a course of action. But the hypothetical involves more than a simple balancing of lives. It makes a series of flawed assumptions about what the potential torturer would know and what torture could accomplish. These assumptions are crucial to assessing whether torture would have the promised consequences. Deconstructing these assumptions and comparing them in a hard-nosed way to what we know about real decisions to engage in coercive interrogation allows us to judge whether the decisions are justified by the moral argument implicit in the hypothetical. Why challenge the hypothetical? Hypotheticals are often used to frame a complicated moral question in a way that makes it easy to grasp. But if hypotheticals are to have the moral force that they are intended to generate, they must provide usable intuitions that are transferable to real-world decisions. The value of hypotheticals depends on the extent to which they track the critical features of the problem that a moral agent actually faces. To argue from a case that does not track the critical moral features of the relevant context disorients both the moral and the legal issues that the hypothetical is designed to illuminate. Taking apart the hypothetical allows us to see more precisely why it is a mistake to use an extreme and imaginary case to develop policy. As I will show, the decision to torture will never, in the end, be simply a judgment about how many lives will be saved if torture is used......
Second, the hypothetical assumes an extraordinary degree of clarity about the situation in which you (now an ins utional "you") find yourself when the question of whether to torture arises. You know with reasonable certainty both that there is a nuclear bomb in the middle of Manhattan and that the bomb will explode and will kill many people absent your intervention. Such certainty may be hypothetically possible, but it will likely never exist. Instead, it is far more likely that you will wonder whether there is a bomb in the first place and, if there is, how dangerous it might be. Third, the hypothetical assumes that the person to be tortured is the one (perhaps even the only one) who knows where the ticking bomb is. The "war on terrorism" being what it is, however, it is highly unlikely that any person faced with the decision to torture will know whether the suspect either has the relevant information or provides the only or the best avenue through which to get the information. Instead, the more likely question will be whether the person to be tortured really knows anything useful at all. Finally, the hypothetical assumes that if the captured person gives you the information after being tortured, the information will in fact be true and useful in defusing the bomb. Yet torture produces results that are highly unreliable. I will challenge each of the elements of the hypothetical in turn, because in the real-world situations in which the use of torture is being considered today, none of the elements that make the hypothetical so persistently persuasive is present, except the hypothetical balancing of lives. I am going to argue that the farther away we get from the hypothetical in a real-world situation, the more reluctant we should be to condone torture, or even to entertain the possibility of it. Even if the hypothetical persuades us that torture would be justified in some extreme cases where many lives would be saved by immediate action, the anti-terrorism campaign has not yet and most likely never will present such a case. As a result, I will argue, the pitched debate [*295] over this hypothetical and its logical entailments obscures rather than identifies what the real choices are in the present situation. We should look instead at the position in which the United States actually finds itself and assess the arguments for and against torture against this background. The arguments for torture, I submit, are not convincing in the real world, however compelling they may appear in the imagined world of the torture hypothetical.