Debates about the legality of torture often invoke intuitions about the morality of the practice. The argument is that there may be extreme circumstances in which torture is morally justified, and if so the law should reflect this. (A subsidiary and separate issue is whether a particular given circumstance, e.g. the War on Terror, rises to the level of sufficiently extreme circumstances.)
Many people, especially the type of people who believe in inalienable human rights, have the intuition that torture is always wrong. Other people are not so sure; their intuitions are more utilitarian (it was Bentham, after all, who said “The idea of rights is nonsense and the idea of natural rights is nonsense on stilts”). What if torturing (killing?) one person (or a few people? or a few dozen people?) could save thousands, or millions? Wouldn't that be morally justified?
The most common capsule version of this question bandied about is the ‘terrorist known to have an a-bomb in NY’ (TABNY) scenario: What if the police capture someone 'known' to have a ticking a-bomb secreted somewhere in a major city, and 'know' they have only 24 hours to get the location before it goes off.
I think these hypotheticals have almost no connection with reality: How can the police 'know' the suspect is in fact guilty, and 'know' about the deadline, with sufficient moral certainty to be willing to contemplate torture, and yet not know what they seek?
I think these hypotheticals also elide what we know about torture: that some people don't crack, and that others will say anything, yes, even false things, to make it stop. And how many false leads does the victim have to give before the 24 hours are up?
But never mind that. Let's take it on its own terms. And by its own terms, I mean from the framework of a utilitarian moral calculus, since I doubt that a short blog post is going to convert a utilitarian to a rights-based vision of morality (although there are arguments justifying rights-based morality in consequentialist or utilitarian terms).
Law preforms complex functions in modern society. Among them it gives notice of which actions risk consequences (deterrence) and is to at least a limited extent a moral statement of what the community values, tolerates, or abhors (education).
We also know that rules tend to be violated. Generally speaking, however, if something is permitted we are likely to see more of it. Indeed, as the Medium Lobster recently noted, in some visions of utilitarianism it would be morally proper to torture N people if it would save N+1, or even morally proper to torture infinite numbers of “them” to save one of “us”.
Rules against the torture of suspects/detainees/prisoners are directed at the people who have power over that person. If we as a nation craft a rule that says torture is permitted to serve the greater good, we instruct the police officer/CIA officer/soldier at the sharp end that they should in each case make a personal judgment as to whether the end justifies this means. It is the nature of man, and especially bureaucratic man, that in times of stress people frequently are going to choose to err in the direction of heading off the mass disaster rather than risk being held responsible for failing to prevent it. That means we're likely going to see a lot of torture, indeed “too much” even by a utilitarian calculation. Furthermore, once you open the door to torture, there's no logical reason to think it will only be applied to “them”. What if the suspected 'terrorist with the bomb' is one of “us”?
Utilitarian opponents of a flat no-torture rule nevertheless object that it fails to deal with the rare but possible TABNY case where torture would be justified, and that this failing should be corrected. Here, I think I'll follow the great Charles L. Black, Jr. lead. In an article I wrote on cryptography and the constitution a few years ago I summarized Black's view:
that an “absolute” right against being tortured might nonetheless find room for an exception in the case of “the man who knew where the [atom] bomb [was ticking, but] sat grinning and silent in a chair” far from the place he had planted it. Charles L. Black, Jr., Mr. Justice Black, The Supreme Court, and the Bill of Rights, Harper's, Feb. 1961, at 63, reprinted in The Occasions of Justice: Essays Mostly on Law 89, 99 (1963). Explaining this position in a Constitutional Law class I attended at Yale in 1984, Professor Black stated that he believed torture morally justified in this extreme and hypothetical case. Once the torturer extracted the information required, Black continued, he should at once resign to await trial, pardon, and/or a decoration, as the case might be.
I think Charles Black got it exactly right. I'm not sure that I think torture is ever morally justified or sensible, but I am prepared to accept that in the most extreme circumstances there might be an exception to that rule. But one thing I am certain about: if someone thinks that torture might be morally correct in a given situation, I want the potential torturer to understand that by acting on their view they are putting themselves personally at risk, and that their duty is to turn themselves in as soon as they've extracted what they sought (or failed).
If it turns out that the belief which motivated the torture was justified (and the a-bomb is defused), we may praise them. But if it turns out that the belief was mistaken, and especially if they have tortured an innocent, let them not turn to legal institutions for refuge.
Torture, as you and probably most of the rest of us, understand it, seems to me to be a remarkably inefficient way to find the ticking bomb. False leads, hanging tough, death of the prisoner, etc. are all impediments to getting the information. There are probably less intrusive, more efficient ways to induce a captive to tell you where the bomb is located. Recall the scene from North by Northwest, in which Cary Grant is held down while whiskey is poured down his throat? That might work well. Or maybe some drug, one we may not even know about, used in the context of an appropriate setting, could so relax inhibitions that the facts would come stumbling out. Were any methods other than physical torture attempted at Abu Ghraib? Why not? Would violations of a US law or an international treaty by using alcohol or drugs be any more reprehensible than electro-shock? Is the act of forceably intoxicating someone, or injecting a person with a drug, more shocking to the conscience? The photos of the events in Iraq and at Gitmo were not photos of people trying to get information; those were photos of people following orders and enjoying themselves. Perhaps what has happened with the torture scandal was very much like what happened with the failure to block the 9/11 attacks: Not a failure of intelligence but a failure of imagination. (Pardon the pun.)
The chances of a law enforcement officer actually having to deal with a TABNY scenario is vanishingly small. Accordingly, there’s little value in devising a procedural framework that will almost certainly never be utilized–and even if it is, will eventually devolve to Justice Black’s conclusion regardless. But the same cannot be said of wartime treatment of captives by soldiers, nor do the same considerations apply.
In the first place, captured soldiers (or battlefield detainees) are very likely to possess information of value to the captors–and that information goes stale quickly. Soldiers are also more likely to concentrate on their primary task of warfighting, and be less well-trained in the ancillary matter of detention procedures. Finally, when captors are left without clear rules, abuse is common (and empirical data suggests they tend toward hoods and sexual humiliation a la the Stanford Prison Study).
For POWs, the rules are clear: no coercion of any sort is allowed. (Per Third Geneva, “unpleasant or disadvantageous treatment of any kind” is forbidden.) However, it’s doubtful that Al Qaeda detainees would qualify as POWs under any reasonable GC interpretation. If the GCs don’t apply, the limit would appear to be the Torture Treaty’s “severe pain or suffering”–which could mean nearly anything.
It’s been suggested the OLC memo is a roadmap for torturers. But the absence of a clear set of rules will almost certainly lead to situations where jailers are making up their own guidelines. And history suggests that will look a lot like Abu Ghraib.
1. Interesting that the torture defenders always argue the extreme. The A-Bomb in NY. Such an argument, of course, distracts us all from the real-life situations in Iraq, and perhaps elsewhere — innocent poeple rounded up for being at the wrong place at the wrong time. Or DWI (driving while Iraqi).
2. And all the secrecy (classify everthing). The very notion of all the secrecy is so telling. They are doing wrong and will not allow the light of day to shine upon it. So plainly unAmerican that they must label it classified.
3. Bush should have rejected all of this publically immediately. This is the same guy who looked so disgusted just a few short weeks ago, and even apologized (sort of) to the King of Jordan. What must those in the Middle East think now of Bush’s television appearances on Middle East television just a few weeks ago?
Black’s assessment mirror’s what I’ve heard of Thomas Jefferson’s about the POTUS not following the law or Constitution. As I recall, the POTUS may decide that it is in the best interst of the country and therefore his duty to violate a law. But then it is his obligation to explain his actions and accept the judgement of Congress and the people. In principle, this sounds prinicpled. In practice, as with all things, it is subject to manipulation. While it may just form one more check and balance but I worry about a demagogue using this approach to violate the rights of a minority. It seems that the courts must have a final say. However, this implies that the rule of some laws are more important than the rule of other laws. I can buy that, but which laws are most fundamental? The right not to be tortured would seem to be a candidate. Is it the right not to be tortured without probable cause? (Note, the whole premise is that this is outside of “due process” by the fact that we are discussing illegal actions.)
In addition to all the reasons that rightly identify torture as wrong, I would like to include how unnecessary it is. It seems that the story of Adurahman Khdar indicates that the best information comes from those that recognize former leaders as oppressors.
Does anybody remember a part from the 1st ‘Dirty Harry’ Movie where a girl is left somewhere suffocating in a hole… and after Detective Callahan tracks down the perpetrator he resorts to torture to get this girl’s hidden location? But unfortunately for our hero he is to late to save her, which meant that the rules that protect a suspect can hinder justice or hurt the innocent. Well should that sad truth still be ok with your DOJ/AG, especially since this is a “war on terror”?
Cecil Turner is on the mark about the TABNY scenario, in real-time and in real-life situations it is nothing but an oft-repeated Hollywood script. Yes this is a war, and we call it that for now, but it’s new legalities will soon creep to us. When that occurs, we will start by having a lot of crimes “solved” using a mean standard reminiscent of the pre-civil rights South. Not all at once, but in each little Hollywood TABNY scenario law enforcement can dream up.
Even despite being a torturer Dirty Harry still went on to blow away plenty of bad guys and say some great lines. In the movies.
I always classed this with the eating people situation: eating people is always wrong is a good general rule. If you are in a situation where eating people is right, you will know it. Thus the survivors of a plane crash some decades ago eat the bodies of those who had died, and so survived until rescued. That seems to me okay. In the famous necessity defense for murder (I forget the reference, an english case from the 19th century): two men killing and three eating an unoffending and weak fourth and so surviving in a lifeboat until rescue; ruled murder and condemned to death, sentence commuted to 6 months imprisonment, a correct decision following (actually anticipating) Black’s rule.
Did you notice that a lot of american intellectuals who are not neoconservatives wrote papers favoring torture in extreme cases. Among others : Dershowitz, Moore, Levinson… Even Walzer and, twenty years ago, Nozick (in his book : Philosophical explanations). Writing from France, a country that had its share of torture, I am very surprised by the differences between our two counttries. When the French army tortured (and it did a lot in Algeria) you could not find an intellectual nor a politician to approve of it or to write papers explaining you are forced to do it in some cases. There was a taboo on torture and everyone made sure it was enforced. In US, you let this taboo be destroyed, which is, at least in my eyes, morally very disturbing.
If the risks of someone being wrongly tortured are greater than the minimal possibility of a TABNY scenario actually arises, then even utilitarians would have to admit that an absolute taboo against torture is morally desirable. The definitiveness and the lack of slippery slopes which results from absolute opposition are a massive gain in relation to any marginal losses in extremely rare cases.
In any case, someone who thinks there is nothing wrong with torture, murder, etc., in some circumstances, has no real basis for such an extreme revulsion at the acts of the bomber, that they could any given case justify torture. It is inconsistent to maintain that horrific acts are sometimes justified and yet to claim that they are so exceptional and evil as to justify what would otherwise be forbidden methods.