It’s wrong, no matter how you argue it.
By Craig Duncan
To people who oppose torture, the response is always the same. “Ah, so you’re against torture? Well, what would you do if you had in your custody a terrorist who has planted a ticking nuclear bomb somewhere in Manhattan, and he refuses to tell you where it is? Wouldn’t you do anything, including torture him, in order to try to save millions from that bomb?”
How should opponents of torture reply to this game of gotcha? Let’s start with a little background in moral philosophy. Moral philosophers have identified at least two broad approaches to moral issues. The first, known as “consequentialism,” judges actions as right or wrong exclusively on the basis of their consequences: the right act to perform is always the act with the best overall consequences.
According to consequentialism, then, “the end justifies the means.” Clearly, the ticking time bomb case described above exemplifies the consequentialist approach: torture may be a bad means, it says, but torture is surely not as bad as the deaths of millions of innocent people.
The second approach, which I will call the “respect for persons” approach, rejects the claim that only consequences matter. According to this approach, each individual, simply in virtue of being a person, has an inherent dignity—a dignity that morally demands respect. Respecting this dignity means recognizing that other people matter in their own right, that they are not merely disposable instruments that can be manipulated in pursuit of other goals, even other worthwhile goals. Instead, individual people are beings endowed with rights: rights to life, liberty, fair treatment at the hands of others; these rights place moral constraints on what we may do, even when we are seeking to do good.
Within the respect for persons approach, which I favor, there is a quite direct explanation of why torture is wrong. Torture is, it says, the ultimate insult to another person’s dignity, the most complete act of humiliation possible. Torture is the total subjugation of one person within another’s power; it destroys the subjugated being’s integrity—his or her wholeness, his or her separateness—as a person. The torturer strives to make his victim a mere puppet, with the victim’s nerves pulled taut to serve as puppet strings, so to speak.
The intention of the torturer is that the victim can do nothing other than his, the torturer’s, bidding; if in fact the victim can summon up the will to resist the torturer’s demands, then this is a defeat for the torturer. In short, torture aims at nothing less than the utter destruction of its victim’s will, the essence of his or her personhood. That is why it is the ultimate form of disrespect. That is why the doctrine of respect for persons easily entails that people have a right not to be tortured.
Still, we must ask: is this right not to be tortured an absolute one? Is it really correct to say it is never right to torture another person? Against a picture of an absolute right not to be tortured, it is tempting to think that when the consequentialist case for torture is supremely strong—as it seems to be, say, in the ticking time bomb case with which we began—then even basic rights against torture can legitimately be overridden.
I think this picture is correct. Rights not to be tortured (as well as all other rights) are not absolute rights—though I would still hasten to add that they are near absolute, that is, they should only be violated in the gravest, most urgent and supreme emergency.
That said, I don’t think this abstract concession is at all the resounding victory the pro-torture crowd thinks it is. One obvious observation is that the recent acts of torture perpetrated by U.S. personnel—acts apparently savored by the pro-torture crowd—have hardly met the exigent conditions of the ticking time bomb case, to put it mildly. More importantly, though, this reply overlooks the fact that, although in extreme cases there may be consequentialist reasons to torture, there are also grave and weighty consequentialist reasons not to torture.
First, it very probably won’t work. The tortured person may be innocent and hence not possess the sought-after information. Or he may be guilty but be able to stall long enough by just making up answers. Either way, we end up with one tortured suspect and lots of dead bomb victims.
A second and even weightier consequentialist reason not to torture is that torture has awful long-term consequences, and hence carries a high danger of winning the battle but losing the war. History suggests that once torture begins, it has a habit of spreading. The French in Algiers in the 1950s, for example, first began to torture suspected Algerian terrorists solely in order to learn of future terrorist plots, but they soon were torturing much more frequently in order to spread fear among would-be terrorists at large, or simply to vent their hatred of their foes. Something similar appears to have happened at Abu Ghraib.
What is more, torture is almost always counterproductive. It inspires more terrorist reprisals and it can serve terrorists’ goals in at least two ways. First, appeals to the evidence of American brutality can serve terrorists’ recruitment goals, so that although you may have foiled one bomb plot, in doing so you have merely created scores more bombers. Second, torture can serve terrorists’ political goals by inspiring a broader loss of sympathy for America (and a corresponding rise in anti-Americanism) among even non-terrorists.
The harm this does to the fight against terrorism is hard to underestimate. Foiling terrorist plots requires the cooperation of foreign governments and the pooling of international intelligence resources. Political leaders in countries with a strong anti-American public will feel less free to cooperate with American intelligence agencies. Additionally, civilians in those countries with be less inclined to provide information about any terrorist activities they happen to learn of.
In order for consequentialist reasons to be weighty enough to override rights against torture and render it permissible, it is simply not enough that the deaths of many innocents are at stake. To think this way is to forget that the force of the consequentialist reasons for torture is always opposed by the force of the very powerful consequentialist reasons against torture just described.
Instead, what must be the case for torture to be permissible is that the force of the reasons for torture “minus” the force of the reasons against it (the “resultant force,” perhaps) must still be forceful enough to override the near absolute force of a person’s rights against torture. This is not a very promising case for torture. It is hard to say how often these conditions will be met, but I would be surprised if such conditions were met more than once a century, if that.
“But still…but still…” the pro-torture crowd will say. “If you concede in principle that there might be permissible torture in some cases, then you should at least agree with us that there should be no complete legal ban on it.” The reply to this is no. We should not craft laws solely with extreme cases in mind.
It is better to craft laws with the general case in mind and then handle extreme situations on a case-by-case basis via a legal defense known as the “necessity defense.” Someone who speeds away after a car crash violates the law against leaving the scene of accident, but if she did so in order to rush her grievously injured passenger to the nearby emergency room, she will likely be allowed to argue before a jury that breaking the law was necessary in those circumstances, and she will likely prevail. A pharmacist who administers nitroglycerin to someone having a heart attack in his shop breaks the law against providing drugs without a prescription. A hiker caught off guard who breaks into an empty cabin to escape a snowstorm breaks the law against trespassing. In these cases, a necessity defense will almost surely spare the law-breaker any conviction.
The general idea, then, is that it is better to handle such exceptional cases via the mechanism of the necessity defense, rather than inserting a bunch of exceptions into the law’s definition (i.e. changing the law to read “It is illegal to speed, unless you are in situation X, or you are situation Y, or…”). For one thing, you will never be able to predict all such situations in advance, so you will need something like the necessity defense anyway. What is more, even if you could predict such situations, the resulting law would be unwieldy and more prone to abuse.
Surely these considerations imply that we should not forgo an absolute legal ban on torture just so that torturers, in that once-in-a-century justified torture case, will not fear prosecution. Instead, let’s keep the legal ban on torture. Should that extremely rare event of justified torture arise, the torturer will have to argue his or her case in front of a jury of twelve peers. If it really was a justified case of torture, the torturer will have little to fear.
Of course, the George Bushes and Dick Cheneys of the world may think that a total legal ban on torture is still too risky and that given the high stakes we should not force torturers to take their chances with a jury. They think that this risky prospect may keep some officials or soldiers from doing what (they believe) needs to be done to save lives in a supreme emergency.
Three replies suffice to reveal the flimsiness of this argument. First, it simply ignores the risks inherent in a less-than-total ban on torture, namely, that the risk that such a ban will serve as cover for unnecessary (and hence morally abhorrent) torture, and the risk that this unnecessary torture will sour America’s image and help terrorist recruitment.
Second, this argument insults the courage of the people charged with protecting us. These are soldiers who will fall on a grenade to save a buddy. Why think they won’t risk a jury trial if that is what must be done to save thousands of American lives in a supreme emergency?
Third, this argument insults the courage of the American people. “Just do anything to save us, please!” it portrays the American public as saying. “We don’t care about our honor! Forget our deepest values! We’d rather sacrifice those things than be exposed to any risk of danger at all, no matter how slight!” This, however, is not the American public I know. Last time I checked, we were still the home of the brave, not a country of cowards concerned only with saving our own skins.
Craig Duncan is an assistant professor of religion and philosophy at Ithaca College. It’s hard to write something funny here after an article on torture. E-mail him at email@example.com.