Legitimizing Torture

Bad Arguments for a Dangerous Policy

In October, at the urging of Senator John McCain (R-Ariz.), the U.S. Senate voted overwhelmingly to place restrictions on interrogation techniques employed by the Department of Defense. The McCain Amendment, which was added to a defense appropriations bill, would bar the “cruel, inhuman, or degrading treatment or punishment” of prisoners in U.S. custody. Though McCain’s proposal primarily reaffirms the standards of the existing War Crimes Act (not to mention the United States’ treaty obligations), the vote does represent something of an admonition of the current administration.

Unfortunately, its impact may be entirely symbolic. To become law, the bill would still need to pass the House, and President George W. Bush has threatened to veto it, if it does. Moreover, Vice President Dick Cheney is pressing Congress to exempt the CIA from the legislation.

The administration’s intransigence suggests that it remains committed to fighting the “war on terror” by any means, including torturing prisoners. Assistant Attorney General Jay Bybee summarized the justification for this stance in an August 2002 Justice Department memo. The Bybee memo, noting Al Qaeda’s apparent intention to procure weapons of mass destruction, posited a situation in which a detainee might possess information concerning an impending and calamitous attack on the United States. Would we not be obligated to use coercion to get this information? “Clearly,” Bybee wrote, “any harm that might occur during an interrogation would pale to insignificance compared to the harm avoided by preventing such an attack, which could take hundreds or thousands of lives.”

Bybee’s position—that it is better to torture one terrorist than let thousands of innocent people perish—invokes what ethicists call the “ticking time bomb” scenario. Suppose a terrorist has placed an atomic bomb in a city, set to explode in a few hours. The culprit has been caught, but will not reveal the location of the bomb. There is not enough time to evacuate the city. In this situation, many would argue that weighing the deaths of tens of thousands against the hurt inflicted on the one person clearly justifies the use of torture—that the wrong of torture “pale[s] to insignificance,” as Bybee writes, in comparison with the lives saved. This is the central challenge posed by those who advocate (either zealously or reluctantly) the use of “coercive interrogation.” It’s a strong argument, one that human-rights advocates have mostly failed to address. But it is not unanswerable.

First, it is important to recognize that the ticking-bomb scenario is largely fanciful. In several key respects it is tidier than any such crisis is likely to be in real life, where choices are rarely so stark, options so severely limited, or knowledge of consequences so certain. For example, in a real crisis our knowledge of the situation would almost inevitably be fragmentary and uncertain. Does the bomb actually exist? Can it be defused? Is there time to find it without employing torture? Is the man in custody in fact the one responsible? In the face of such everyday uncertainty, the permissibility of torture must be greatly diminished. Egregiously immoral acts cannot be justified merely by the hope that some good might come of them.

The ticking-bomb scenario also assumes certain ideal conditions governing how torture is used. For instance, as Cornell ethicist Henry Shue has written, it is taken as a premise that the torture will be “purely interrogational,” and that it “will not be conducted in the basement of a small-town jail in the provinces by local thugs popping pills.” The scenario further presumes, Shue continues, that “the prime minister and chief justice are being kept informed,” that “the victim will not be raped or forced to eat excrement and will not collapse with a heart attack or become deranged before talking,” that “pain will carefully be increased only up to the point at which the necessary information is divulged, and the doctor will then immediately administer an antidote and a tranquilizer.” In other words, it assumes that torture will be taking place in a hypothetical, Philosophy 101 thought experiment, and not in the real world, where, as we all know, the practice is not characterized by such restraint.

Perhaps the most telling objection to the time-bomb scenario is that it promotes a principle—a bald utilitarian calculus—that cannot be limited to cases like the one it describes. In the real world, torture is contagious. As Jessica Montell, a Jerusalem-based human-rights advocate, explained to an Atlantic Monthly writer in an article titled “The Dark Art of Interrogation” (October 2003), it is exceedingly easy to stretch the logic of justification in the time-bomb scenario to cover a wider, and almost infinite, range of cases. “Why stop at the bomb that’s already been planted and at people who know where the explosives are?” asks Montell. “Why not people who are building the explosives, or people who are donating money, or transporting the funds for the explosives? Why stop at the [bomber] himself? Why not torture the [bombers’] families, their relatives, their neighbors?”

The point is that in a strictly utilitarian calculation, the guilt or innocence of those who are tortured is irrelevant. If we accept Bybee’s view that one person’s rights and dignity “pale to insignificance” in the face of the deaths of thousands in a terrorist attack, then torture is not only permitted, it is morally required. And ultimately it makes no difference who suffers the pain. If the individual’s rights are deemed irrelevant when weighed against a larger disaster, then the government would be equally justified in torturing the bomber, or his accomplices, or a witness, or an uninvolved third party, as long as doing so would produce the desired result. If it is necessary to stop the attack, then it does not matter whether the electroshocks are applied to the terrorist or to the terrorist’s daughter. Indeed, if the critical information can only be acquired by torturing the daughter, then the daughter must be tortured.

Apologists for torture usually try to rule out this possibility. Harvard law professor Alan Dershowitz, for example, has suggested “limiting [torture] to convicted terrorists who had knowledge of future massive terrorist acts, were given immunity, and still refused to provide the information.” But in essence, the argument used to justify torture is not amenable to this kind of ad hoc restriction. If we reject the justification for torturing the terrorist’s daughter, then we must also reject the utilitarian justification for torturing the terrorist himself.

The very idea of human rights suggests that there are some things we may not do to people, no matter what the circumstance. As philosopher Thomas Nagel points out in his essay “War and Massacre,” “the most serious of the prohibited acts, like murder and torture, are not just supposed to require unusually strong justification. They are supposed never to be done, because no quantity of resulting benefit is thought capable of justifying such treatment of a person.” While we may feel that a terrorist’s rights are overridden by the need to save innocent victims, these rights do not just cease to exist; the terrorist remains human, and must be treated accordingly.

If we hold this premise to be nonnegotiable, we may indeed find ourselves on a perilous collision course with urgent and dreadful exigencies. In some cases torture may seem like the best option, even if we recognize the wrongness of what is required. Unfortunately, the fact that a course of action is not morally available does not guarantee that it will be morally avoidable. This no-win aspect is the defining characteristic of a moral dilemma.

Criminologist Carl Klockars has discussed such dilemmas with reference to the Clint Eastwood movie Dirty Harry, in which police detective Harry Callahan tortures a kidnapping suspect in hope of saving an innocent girl. In his essay “The Dirty Harry Problem,” Klockars observes that “a genuine moral dilemma is a situation from which one cannot emerge innocent no matter what one does—employ a dirty means, employ an insufficiently dirty means, or walk away.” The danger in such conflicts is not that you may commit a wrong—that, Klockars writes, is “inevitable”—but rather that you will seek to claim you haven’t, opting out of culpability by convincing yourself that you have “found a way to escape a dilemma which is inescapable.”

How should we handle the Dirty Harry dilemma in real life? Klockars suggests that in order to maintain the absolute ban on torture, the authorities should punish Harry as though there were no exceptional circumstances. In this view, those who engage in torture have committed a fundamental evil and must be punished. Harry may have done the best thing under the circumstances, but it was still a wrong thing.

An opposite approach would be to endorse Dirty Harry’s decision and pardon the crime. Under the conditions portrayed in the movie, it is hard to demand rote adherence to the Miranda law, and pardoning the torture acknowledges the rightness of attempting to save the little girl’s life. Yet the dangers of this approach are serious. Excusing can look an awful lot like justifying, and if a pardon is interpreted as approval of Harry’s actions, it may set a precedent that allows further abuse.

A compromise position might hold that, while we may not be able to justify Harry’s decision, we can certainly defend him for making it. We find a precedent for this thinking in the Nuremberg Charter, which held that superior orders “shall not free [a soldier] from responsibility, but may be considered in mitigation of punishment.” If we accept the principle that coercion reduces culpability, we may by the same reasoning allow for an argument “from necessity,” recognizing that people can be coerced not only by superiors, but by circumstances. Following the reasoning of the Nuremberg Tribunal, no extraordinary circumstances could erase Harry Callahan’s guilt or justify his crime, but they might weigh against serious punishment. Harry, then, ought to be convicted—and issued a suspended sentence.

While there is no easy solution for Harry’s dilemma, this last approach does offer a pragmatic strategy for judging his decision. It manages to avoid the blindness of legal absolutism, yet leaves in place the prohibition on torture and reinforces the idea of accountability for those who violate it. A cop in Harry’s position must know that, if he determines that torture is necessary, he will have to explain this decision in court and, if his judgment is found to be in error, pay a penalty. Thus no general license to torture can be derived from any particular case. Since this Nuremberg-inspired approach insists that torture is wrong, it offers little in the way of prescriptive guidance for judging when it is necessary. The presumption is always that the prohibition holds, and the burden remains on the individual who violates it.

But why must such a weighty decision be made ad hoc, in the panic of a crisis, and then judged later? And why should the individual soldier or cop bear the responsibility? Why not present the evidence before a court and let a judge determine—in advance—whether torture should be employed? This is the position of Alan Dershowitz, whose essay, “Tortured Reasoning,” seeks to address the torture dilemma with a hard-nosed realism. Declaring his desire to see torture “minimized,” Dershowitz advocates creating a regulatory system of “torture warrants,” a system that would include “accountability, recordkeeping, standards, and limitations.” By imposing an additional level of prior review, such a system, according to Dershowitz, “would probably reduce the frequency, severity, and duration of torture.”

There are several problems with this reasoning. First, it assumes that because torture does occur, it must occur, and that a partial ban can succeed in reducing it more effectively than an absolute prohibition. Historical experience, however, suggests the opposite: that any exception tends to further a drift toward normalizing torture as a routine practice. For instance, the Israeli government experimented with legalized torture, but stopped when abuses became too prevalent. Dershowitz also overestimates the actual level of control that courts exercise through warrants. For example, as Elaine Scarry has noted, in its first twenty-five years, the secret court established by the Foreign Intelligence Surveillance Act authorized about twenty-five thousand wiretaps and denied only one request.

The “torture warrant” approach suggests an obsessive proceduralism. In Dershowitz’s way of seeing things, what matters about torture is not the substantive question of whether such methods can ever be justified, but the procedural one of whether they have been authorized. It is defeatist to assume that our only choice is either to ignore torture when it occurs, or authorize it in hope that it may occur somewhat less often. Even given such a choice, the Dershowitz approach is likely to be counterproductive. A warrant system, by introducing a new category of “legal torture,” would undercut the sense of manifest illegality that currently adheres to all such practices. This shift would confuse the already hazy standards by which we hold soldiers responsible for recognizing—and resisting—illegal orders. As Senator McCain recently noted, “Confusion about the rules results in abuses in the field.” This is what happened at Abu Ghraib.

There exist practical as well as ethical reasons to resist the legitimization of torture. Even if we accept that under certain hypothetical ticking-bomb conditions torture might be the lesser of two evils, it does not follow that the state should use it. It is one thing to construct hypothetical cases in which torture is defensible. But it is quite another to trust the state to use its discretion with the necessary caution, limiting itself to those instances where exceptional circumstances truly do trump the usual rule. For this reason, a society committed to individual rights ought to guard them zealously, even excessively, keeping its government on a short leash where torture is concerned. Our rights should apply in the extreme circumstances, so that they may be preserved for more normal times. Ground that we lose in this crisis may prove tragically hard to recover.

 

This essay is adapted from the book American Methods: Torture and the Logic of Domination (South End Press).


Related: Perverted Logic, by Cathleen Kaveny
Bad Orchard, by Margaret O'Brien Steinfels
Truth & Consequences, by the Editors

Published in the 2005-12-02 issue: 

Kristian Williams is the author of Our Enemies in Blue: Police and Power in America (Soft Skull Press, 2004) and American Methods: Torture and the Logic of Domination (South End Press).

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