How to Argue Against Torture
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How to Argue Against Torture
y Bernard Chazelle
A signatory to the UN Convention Against Torture, the United States "does not torture." [1]
Yet abundant evidence indicates that it does, directly or by proxy—and in fact always has.
An old American tradition of state-sponsored torture even has its own lexicon: SOA,
Kubark, Phoenix, MK-Ultra, rendition, CIA's "no-touch" paradigm, etc. It is quite popular,
too. Torture enjoys more than twice the public support in the US that it does in France,
Spain, and the UK. [2] One of the most watched TV dramas, 24, is but an extended ode to
the glories of torture. The former director of a prominent human rights center at Harvard
writes of the judicious use of sleep deprivation, hooding, and targeted assassinations; he
concedes the government's need to "traffic in evils." [3] The nation's most cele
ated
defense attorney recommends "torture wa
ants" and "the sterilized needle being shoved
under the fingernails" ("sterilized" because he is a liberal). [4] The most cited legal schola
in the land writes: "If the stakes are high enough, torture is permissible. No one who doubts
that this is the case should be in a position of responsibility." [5]
Anti-torture voices have been left sounding defensive, insecure, incoherent. Yet, while
oasting the world's highest incarceration numbers and supermax prisons characterized by
a warden as a "clean version of hell," the US has also begun to question its tolerance of
torture. [6] The debate is on, and torture is winning. I intend here to lay the foundation fo
a strong, cogent anti-torture position. It rests upon three principles:
Torture is always wrong;
Torture must be banned by law unconditionally;
Not all torture decisions should be morally codified.
The first two principles reject torture on moral grounds (it's wrong) and legal ones (it's
ad). Unfortunately, they do not imply that one should never torture. If, indeed, our only
choice is between two acts that are immoral, these two rules alone won't tell us what to do.
This central dilemma arises in principle—we can all imagine ourselves in an extreme
situation about which we cannot say with certainty that we would not torture—but does it
arise in practice? Many say, with some justification, that it does not. Whatever the case may
e, there is a hefty price to pay for dismissing the central dilemma on implausibility
grounds, as many liberals are wont to do. Once the improbable is deemed morally
i
elevant, torture can no longer claim the status of absolute wrong, for there is no such
thing as an "absolute-wrong-in-practice." Any serious condemnation of torture must
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account for the central dilemma.
Hence my third principle. It stipulates that no ethical code (ie, universal decision
procedure) should tell a would-be torturer what to do in all situations. This is to avoid
ationalization and, beyond it, the dilution of moral responsibility in the hypothetical case
where not to torture is no less an immoral option than to do so (the central dilemma). The
third principle is a point of meta-ethics. It is not a moral rule per se, but a statement about
the inapplicability of moral rules. It is designed to overcome the justificatory purposes
embedded in any ethical code. One may object that the central dilemma arises with any
moral wrong, so why single it out? Because it lies at the core of the "torture issue" itself,
which, with the wide support it enjoys, is indeed an issue. How to aggregate universal
moral principles into decision procedures, a central problem in ethics, is in my view the
only interesting aspect of the torture question; the rest is straightforward.
Like many, I feel strongly enough about torture to find the very notion of a "torture debate" distasteful. But sentiment
alone means nothing. I feel strongly about racism, too. But racism is not wrong because it offends my sensibilities. It
is wrong because it violates reason and human dignity. Likewise, if we cannot offer a reasoned account of the
absolute wrongness of torture (especially given the wide public support for it) then our impassioned opposition,
indispensable though it may be, will still be, strictly speaking, meaningless. It also matters because one cannot fight
effectively for a cause one does not understand. Is it a coincidence that torture has remained so popular in this country
amidst such an impoverished public discourse? [7 ]
I. Why Torture Is Always Immoral
What is torture? "I know it when I see it" is a fine answer and rough agreement with
common intuition will do. Supermax incarceration and prison rape can be construed as
institutionalized forms of torture. For the purpose of this essay, however, I na
ow down the
definition to the forced exchange of information for the relief of unbearable pain. Much like
slavery, torture is coerced trade. To many, its abho
ence requires no empirical evidence: it
is a priori, intuitive, and visceral. So much so, in fact, that even asking why seems immoral,
as if merely speaking of a ghost might make it appear.
But, if torture is so evil, why is it so hard to explain why? Let's try. Some say a society that
allows torture loses its soul and
ings shame on its members. This is true, but it explains
nothing—at least no more than calling murder wrong because it makes you a bad person. A
line often heard is that torture does not work. Never mind the fragility of a proposition that
is both unprovable and falsifiable. Even if true, this claim is a gift to the torturers: "Make it
work, Mr Inquisitor, and the moral turf is yours." It's like rejecting slavery because "it does
not work" or opposing cannibalism on nutritional grounds. Consequentialism is thin gruel
against torture. Beware of the sentence that ends with the words, "therefore torture is evil."
Better for it to start, "Torture is evil, therefore..."
This
ings us to the deontological perspective. Do we recoil from torture because it treats a
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person only as a means to an end? It is a principled view that might account for ou
ational rejection of torture, but Kant's Categorical Imperative is too much at variance with
Anglo-American norms to explain the instinctive revulsion the practice commonly elicits.
(As the death penalty illustrates, note that popularity does not contradict abho
ence.) In
his paeans to torture, Dershowitz is merely echoing Bentham and, beyond it, the reigning
utilitarianism of our time, which, from conditional welfare to advertising, routinely flouts
Kantian ethics. And yet, is there a doubt that the wrongness of torture finds its source, not
in a holy book or in the final link of a chain of observations, but deep in humanity's moral
intuition? On this we all agree.
Or do we? Few would argue that wate
oarding Khalid Sheikh Mohammed was worse than
shooting him in the head. Yet killing does not make us wince the way torture does. Why?
Could it be the excruciating pain? Doubtful. Baby Mohammed lost both legs during Shock-
and-Awe and, over a 10-hour period, bled to death stuck in the de
is of his home, a ho
o
entirely foreseen in its outline, if not its particulars, by the architects of the war. The baby's
pain vastly exceeded that of his namesake. Yet if Rumsfeld must one day cross Europe off
his travel plans, it will be because of Khalid Mohammed, not baby Mohammed—despite the
former SecDef's direct responsibility in the latter's agony. Pain and death do not explain
why torture feels so evil.
Then what does? Perhaps the deadly mix of fear, humiliation, abandonment, and
open-ended sadism that the practice connotes. The torturer never says, "I go home at 5."
Torture stirs in all of us the age-old anxiety of a cruel deity that keeps us forever conscious
to suffer an endless agony. Pain, like relativity, distorts time. (A root-canal patient can tell
you all about eternity.) Past a certain point, the victim's fear is no longer that he will die but
that he won't. Torture is a window into hell, with a satanic god cast as a human sadist. I
elieve one cannot grasp the role of torture in the imagination without integrating its
metaphysical resonance. Torture rehearses eternal damnation. And that's not a good thing,
ecause hell scares the hell out of everyone, even those who don't believe in it.
To add insult to injury, the torturer reflects back to us a magnified image of that repressed
speck of sadism buried in all of us. This did not always bother us. God gave Moses not one
ut two commandments against lust, and not a single one against cruelty; likewise,
Augustine deemed cupidity a more serious offense. It was not until Montaigne and
Montesquieu that cruelty acquired a special status in moral philosophy. [8] Our revulsion
toward torture is hardly universal—children can be astonishingly cruel to animals—but,
ather, the sign of a certain liberal disposition. Torture offends us through its frontal assault
on human dignity. Beyond subverting free will into "anti-will"—your being tortured does
not simply violate you: it makes you violate yourself—it denies something even more
fundamental than freedom: personhood. It dehumanizes not only the victim and the
torturer, but society as a whole. Or so our modern liberal sensibilities tell us.
II. Why Torture Should Always Be Illegal
Should torture be legalized in exceptional circumstances? The answer is an unequivocal
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no. The ban must be unconditional. Why? Because grotesquely evil behavior must be
criminalized? Pleasing though it may be, this simple answer won't do. We must first
examine whether there might not be a utilitarian reason to make legal exceptions. (Even
the most committed deontologist will recognize the need to test laws against thei
consequences.) I will show that there is no room for exceptions by revisiting the three
arguments central to the issue: TBS, self-defense, and torture creep. I'll also discuss the
criminal prosecution of torturers.
The ticking bomb scenario (TBS) would appear to beg for an exception—see [9] for a
definition. (I'll assume the usual conditions of imminence, gravity, proportionality, and
certainty, without which TBS is not worthy of consideration.) The first issue to address is
consistency. TBS advocates often lack the courtesy to grant the same rights to thei
enemies. They remain oddly silent on whether