Oren Gross on Torture: Ban It Always, Treat Rulebreakers as Circumstances Warrant

Talk about timely scholarship! Prof. Oren Gross of U. Minn. Law has just published Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience, 88 Minn. L. Rev. 1481 (2004).

Here (minus the footnotes) is his conclusion to a long and complex argument, a conclusion which resembles my views, right down to citing Charles L. Black, Jr. approvingly, but ultimately come out somewhat more accepting of the idea that although torture should always be prohibited in order to discourage resort to it in any but the most extreme circumstances, there exist sets of real-life circumstances were torture might be morally justified, and thus would and should be publically pardoned or praised after that fact:

… the official disobedience model imposes a significant burden on public officials. They must act in the face of great uncertainty. At the same time the model does not completely bar the possibility that interrogational torture will be used by officials and later ratified by the public. It simply makes it extremely costly to resort to such drastic measures, limiting their use to exceptional exigencies. As Sanford Kadish notes, “Would not the burden on the official be so great that it would require circumstances of a perfectly extraordinary character to induce the individual to take the risk of acting? The answer is of course yes, that's the point.”

I support an absolute legal ban on torture while simultaneously suggesting that in catastrophic cases public officials may choose to act outside the legal order, at times even violate the otherwise entrenched absolute prohibition on torture.

Some may charge me with trying to have my cake and eat it too, that is, supporting an absolute legal ban on torture precisely on the ground that it will not function as absolute in real life. Perhaps this is true. Guido Calabresi notes that subterfuges often accompany tragic choices. “We look for solutions which seek to cover the difficulty and thereby permit us to assert that we are cleaving to both beliefs in conflict.” To be sure, my proposal attempts to cling to both sets of values involved in assessing torture in general, and preventive interrogational torture in particular. However, rather than cover up the difficulty I seek to expose it and ensure that it is dealt with in as transparent, open, and public manner as possible. This desire for visibility, accountability, openness, candor, and responsibility is shared by proponents of ex ante torture warrants and of ex post public ratification alike.

But is public and open debate about torture, in and of itself, desirable? Or is it better to treat the absolute ban on torture as axiomatic and avoid attempts to prove its desirability or usefulness? Does merely engaging in debate on torture reflect “loose professionalism”? …

… the alternative to no open debate over the use of torture (or, indeed, to discussion that merely replicates the mantra that torture is absolutely prohibited) is not the disappearance of the practice of torture. While we abhor the detailed medieval codes and procedures on torture, we also ought to recognize that the practice remains. By refusing to discuss torture, we do not make it go away; we drive it underground. Moreover, by refusing to acknowledge that the notion of torture is more complex than many supporters of the “torture-is-banned-and-that-is-all-there-is-to-it” approach would have us believe, we run the risk of having the general public perceive the legal system as either utopian or hypocritical. After all, most of us believe that most, if not all, government agents, when faced with a genuinely catastrophic case, are likely to resort to whatever means they can wield—including preventive interrogational torture—to overcome the particular grave danger that is involved. And I believe that most of us hope they will do so.

It's that last line which worries me.

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2 Responses to Oren Gross on Torture: Ban It Always, Treat Rulebreakers as Circumstances Warrant

  1. Evelyn Blaine says:

    I’m not going to take a position on the main thrust of this argument right now, for reasons of time, but I just want to point out an interesting little slippage in the introduction. Professor Froomkin summarizes Gross’ views thus: “although torture should always be prohibited in order to discourage resort to it in any but the most extreme circumstances, there exist sets of real-life circumstances were torture might be morally justified, and thus would and should be publically pardoned or praised after that fact.”

    The “thus” masks a few arguable assumptions: I think it’s quite coherent to hold that X could, in certain extreme (and probably empirically never actualizable) circumstances, act justly in torturing, but that it would nonetheless also be appropriate and desirable that X be punished under the law even though his action was morally just. One can argue this on the a variety of grounds; I note 1) that it is plausible that legal acknowledgment of the exceptionless universality of the prohibition against torture is itself a good, and outweighs the harm of punishing someone who has done a morally just act; 2) that this has the effect of setting the cost/benefit bar for torture even higher — if pardoning becomes sufficiently usual in cases of torture that the torturing official can expect to be pardoned, it will defeat the deterrent effect of the law. There are certainly counterarguments to these assertions; but they are counterarguments that need to be made, and do not just follow directly from the first half of the claim. But I think to deal with this one would need to have a larger theory about the ethical calculus of the pardon and how it should function in a just society.

  2. travc says:

    Despite not having a background in law (or perhaps becasue of it), I tend to agree with the notion of a blanket criminalization of torture (as routinely defined to include physical and psychological coercion to extract information).
    Importantly, I agree to the notion that in some real world circumstances torture may be morally justified (and emperically correct action); however, those circumstances are not generalizable in any meaningful way and, as such, explicit exemption in the law is untractable.

    There are a few real problems that I see however and am curious how others would address:

    1) Stated by Evelyn above, if pardons torturers become routine, then the legal ban becomes moot. However, it seems unjust to punish a torturer who is “morally justified”. This is a slippery slope problem.
    My thought on this is that even a morally justified torturer should be punished to some extent, but that punishment should be mitigated. Something along the lines of imprisonment throughout a full hearing phase… conviction (with the accompaning ramifications), but a “time-served” sentance. Alternatively (or additionally) a presidential pardon at the end of the presidential term would seem appropriate.

    2) Much more difficult is the question of secracy. For this overall scheme (blanket ban on torture with possible case by case after-the-fact justification) to work, the public must be party to the debate of wether any specific case was justified. The author (forgot the name, sorrry) acknowledges this.
    But most of these cases are classified for national security. How the prisoner was captured, what information led the torturer to suspect the prisoner had vital information, how that information pertained to an imminent threat, and how the information played a role in defeating that threat are all vital parts of such an inquiry. They are also things the government will not reveal, and in many situtuations, should not reveal (by my judgement). How do we get around this critical problem? Are closed trials sufficient? (Probably not in the abstract). How can we structure an investigative system that both protects valid national secuirty concerns while assuring punishment for cases of unjust torture and recognizing the rare cases where torture is justified?

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