Why debate torture? Unqualified rejection seems the only position for any decent person. Discussion seems to promise no reward: Either we’ll be seduced by specious argument into relaxing our condemnation (a step toward corruption), or we’ll just end up where we started (in which case we gain nothing).
Whatever the appeal of this line of thought, in the shadow of 9/11, debates over torture are not likely to go away soon. The realization that there exist well-organized groups willing and able to undertake horrific acts of violence against the wholly innocent, coupled with well-stoked fears about weapons of massive devastation, have led some to ask publicly (and many more to wonder privately) whether we shouldn’t reconsider our absolute rejection of torture. Consider the much-discussed ticking bomb scenario: terrorists have hidden a hugely destructive bomb somewhere, and the only way to find its location and defuse it is by torturing a terrorist now in custody. Doesn’t such a case show that in some instances torture may be right? And don’t we want those entrusted with our safety to have this option?
How one answers these questions will in part turn on how one defines torture. Electrodes to the genitals and mutilation surely count, but what about hooding, sleep deprivation, subjection to loud music, and so on? It seems impossible to draw boundaries here, a problem that particularly complicates attempts to control torture through law. It’s not surprising, then, that Torture contains several essays that make such attempts, and these, along with the group chronicling torture’s actual practice and history, are generally informative. (Commonweal readers will be especially interested in Mark Osiel’s argument that members of the church eased the qualms of Argentine torturers.) The most stimulating and rewarding discussions in the book, though, are found in the essays that begin and end it.
The opening essays by Henry Shue, Michael Walzer, and Jean Bethke Elshtain take on the broad question whether it is ever right to torture. In a classic essay reprinted here, Walzer suggests that in ticking-bomb cases those entrusted with public safety should torture, but that torture still remains a wrongful act. Some have found this position incoherent (if you should do it, how can it be wrong?), but we needn’t resolve that debate here, for there’s a deeper point to note. As Shue insists, we must be cautious in drawing conclusions from ticking-bomb cases, for such cases stipulate what are in fact quite unusual conditions: We know we’ve got the right guy; we know we can get the information we need; we know the bomb will go off; and so on. Real life, though, is marked by fallibility, finitude, and error, and it’s just not clear what effect our willingness to torture under fanciful scenarios should have on our commitment not to torture in virtually all the actual cases we confront.
Virtually. Consider Leon v. Wainwright, a 1984 case involving a group of police officers who tortured a kidnapper to learn the location of his captive. They were successful, and afterward faced no legal penalty. Or take the claim by Philippine authorities that in the mid-1990s, torture yielded information that helped foil a plot targeting four thousand airline passengers. These are actual cases where torture may possibly have been appropriate.
Even if we accept this conclusion, we still must ask what it implies about the position democratic nations like the United States should take toward torture. This question dominates the final group of essays, whose flashpoint is Alan Dershowitz’s call for a system of torture warrants, in which interrogators who believed torture would yield crucial information would have to convince a judge, who could then issue a warrant authorizing the torture. Though this idea was widely lambasted, in his essay here Dershowitz gamely defends it. Whether we like it or not, he says, torture is going on-by us, and on our behalf-and it will continue, given the anxieties of our time and the perpetual concern for security. We can either continue to denounce it categorically, with all the hypocrisy and lack of oversight that entails, or we can establish accountable procedures more consistent with democratic norms and more effective at controlling unwarranted torture.
Whatever appeal this proposal has is deeply shaken by a series of questions Elaine Scarry raises in her response. How, she asks, will this system restrain those who currently engage in torture below the radar: won’t they just continue as before if they can’t secure a warrant? And how much oversight can we really expect of such a system? The alarming statistics Scarry cites (twenty-five thousand requests for foreign surveillance warrants, with only one denied; five thousand foreign nationals detained on suspicion of terrorism, with only three charged, two of whom were acquitted) suggest real fears of abuse in the sort of system Dershowitz imagines.
Scarry also raises a more subtle and far-reaching worry about the warrant system, joining here with an idea Elshtain advances. Both note that Dershowitz’s plan would effectively immunize from culpability those who torture: if the warrant is given, the torturer cannot be guilty. But it is vital, they insist, that we not be able to escape responsibility for such acts in advance: remaining ultimately responsible means that we will torture only in the most extreme cases, when we have acutely asked whether we’re really sure of the facts, whether there really is no alternative, and whether we’re prepared to stand by our decision afterwards, perhaps even accept punishment, when called to answer for it. Elshtain goes further, suggesting that the warrant system reflects a naive desire to tidy up the moral universe and so amounts to a sort of bad faith about the human condition. In a world where some would do great evil and all have a responsibility to protect the innocent, we will sometimes face momentous decisions where whatever we do, we risk acting wrongly and taking on guilt: we should not deny this through legal machinations. And Elshtain’s suggestion that the Christian tradition is especially responsive to this challenge, with its emphasis on guilt and redemption, seems to me to repay special attention in this context.
This book as a whole amply dispels the worry that debate over torture must be profitless. If we avoid such debate entirely, we leave the field to those who begin with ticking-bomb scenarios and slide quickly down the slope to some form of legalized torture. To enter the debate, to examine the grounds of our own strong moral prohibition against institutionalized torture, does not show a weakened commitment to that prohibition. It helps us see more clearly why we held it in the first place. This is one area, I think, where we should have the courage of our convictions.
