In the course of a generous and flattering profile accompanying the publication of my new book, Terror and Consent, The Times has mistakenly given the impression that, in the words of its headline, I have “argue[d] the case for torture as an act of heroism.” This will no doubt be as perplexing to readers as it was to me, and so I find it necessary to clarify what precisely my views on torture happen to be.

The source of this misunderstanding lies in the nature of the notorious “ticking bomb” scenario and a legal concept, jury nullification, which I must have unclearly explained to the interviewer. The scenario is usually posed as the following hypothetical: Imagine that interrogators learn that a terrorist in custody knows where a bomb has been planted. In order to “overcome an obdurate will not to disclose [this] information and to overcome the fear of the person under interrogation that harm will befall him from his own organization if he does reveal” the location of the bomb, it is proposed that sufficient dissuasion be applied to prevent the terrorist from refusing to provide the needed information. Threats, harsh words, unpleasant behaviour escalating to beatings and other violence are suggested and the question is asked: At which of these methods would one cavil?

The right answer—the only answer available to the official who has taken up the responsibility of protecting the safety of the public---is that whatever methods are most effective must be employed in such an emergency.

But look closely at the assumptions the hypothetical enfolds. We are to assume (1) that we have a person in custody, (2) that the person is a terrorist who (3) actually knows the location of a bomb that (4) is about to go off, and that (5) under torture he will accurately disclose the location of the bomb that (6) cannot be determined by any other means. A true “ticking bomb” scenario is very rare and the rules that govern such a situation must reflect this.

Accordingly, in Terror and Consent I conclude that, “There ought to be an absolute ban on torture and coercive interrogations for the purpose of collecting tactical information, with the acceptance that this ban will be violated in the ‘ticking bomb’ circumstances: the prosecutions that must follow will allow juries to consider the mitigating question of whether a reasonable person, motivated by a sincere desire to protect others, would have violated the law.” In other words, torture and coercive interrogation must be against the law, full stop. We must depend upon the judgment of juries asked to convict persons of violating such laws to mitigate punishment in those rare but scarcely trivial circumstances in which the hypothetical becomes real. This is the concept, familiar to lawyers and judges, of jury nullification---the refusal of jurors to levy punishment in exceptional circumstances that justify but do not excuse unlawful acts.

And yes, in some circumstances such officials might well be regarded by the societies they have saved at peril to their own lives as having behaved heroically although my reference to the concluding scene in Threepenny Opera (where the guilty MacHeath is raised to the peerage) will likely strike those readers who didn’t happen to catch it as manifestly too frivolous for such a sombre subject.

The profile claims I have been an “adviser” to six presidents---which in light of the views attributed to me can only cause alarm among the readers of the Times. This claim is a misconstruction of the fact that I have served in the federal government during six administrations. The three times I have worked in the White House I did not advise the president, or anyone else for that matter, but served in far more modest bureaucratic positions.

I wouldn’t normally want to contradict what is obviously intended to be a supportive and appreciative article in a respected newspaper and I do so only because it is doubtless my own unclarity---which is my responsibility--- that may have led to these grievously misleading inferences.

Philip Bobbitt

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