Thursday, June 17, 2004
Interesting and uninteresting questions about torture
There are interesting and uninteresting questions one can ask about torture. An interesting one is "Is it ever morally permissible for a regime to torture prisoners?"
I would love to answer "No", but it's a complicated question. The standard arguments in favor of torture are well known. Imagine we are in a situation of imminent peril to a very large number of people (a "ticking time bomb," literally or figuratively), and we know for sure that a certain prisoner has information that could be used to prevent the disaster, and strongly suspect that the prisoner would give up the information under torture but would not under conventional interrogation. That's a lot of conditions that must be satisfied (1. imminent danger to 2. a very large number of people, 3. knowledge that prisoner has crucial information that 4. they will not give up without torture but 5. they might give up under torture), but I would add at least one more: 6. the prisoner must, by previous actions, have forfeited even minimal personal rights, e.g. by committing some egregious crime. I don't think it's right to torture an innocent bystander who happened to overhear a terrorist plot but for some reason doesn't want to divulge the information. If all of these circumstances clearly applied, I would be willing to concede that torture would be justified. Under ordinary non-desperate conditions, I strongly believe that every person has a minimal set of rights that society has no right to violate; but under well-defined emergency conditions, the interests of the larger group can reasonably take precedence.
The problem, of course, is that such stringent conditions rarely apply. I used to be in favor of the death penalty, as I believed that there were some people who had, by their behavior, given up any right to live. I still believe that, but now I am strongly anti-death-penalty, only because I have no confidence whatsoever that our justice system can accurately determine who those people might be. Even the chance of one mistake, putting someone to death who was innocent (or even not as unforgiveably guilty as had been supposed), makes the use of the death penalty completely unpalatable. Similarly with torture -- the danger that it could be used against people who do not meet all of the above criteria is real and terrible. Of course, with the death penalty there is a straightforward alternative (life imprisonment), whereas in the shadow of a ticking time bomb the choice may not be so clear.
There are further problems, which have been widely discussed of late: specifically, the longer-term deleterious effects of being known as a country that permits torture. Breaking the prohibitions against such behavior invites similar treatment of your own citizens, not to mention general resentment among people who tend to sympathize with the tortured subjects. On the other hand, if all of the above highly restrictive conditions were actually met before torture was ever used, it would be confined to moments of such extreme danger that the attendant bad publicity would likely be an irrelevant side issue.
There are interesting blogospherical thoughts on the issue from Jack Balkin, Eugene Volokh, Kieran Healy, and Matthew Yglesias, among many others. It's very difficult, as Volokh mentions in another post, to even think rationally about these questions, as the real-life consequences are so sickening. But, as recent events have shown, we have little choice.
An example of an uninteresting question about torture would be: "Did high-level officials in the Bush administration understand how it was being used in Abu Ghraib and other Iraqi prisons?" This question is uninteresting, not because it is unimportant, but because the answer is perfectly obvious: Of course they did. Not only does it seem implausible on the face of it that widespread patterns of similar behavior spontaneously arose in the acts of a few bad apples, and not only do the infamous torture memos and other documents make clear how the administration was planning its legal justification all along, but the administration has been very open in its view that there should be essentially no restrictions on how the "war on terror" should be conducted, in any theater and by any U.S. agent. The President and his officers consider themselves to be unimpeachable agents of good in the war against evil, and will never hesitate to break a few eggs in the process of making their omelet against terror. What's been happening in Iraq is a perfectly consistent extension of well-documented policy, and there's no reason to think that it's disconnected from the orders from on high.
The only reason the administration is acting even somewhat contrite is because there were photos taken, and the images are too vivid and horrifying for anyone to admit they were part of an approved policy. Had the evidence been limited to testimony of prisoners and Amnesty International reports, the response would not have extended beyond stonewalling. Who knows what else is still going on.
Update: Never mind. Belle Waring has answered all the questions. Or unasked them, at any rate.