Wednesday, December 17, 2008

Toture and the "Slow Fuse"

I have no illusion that my most recent post will satisfy defenders of torture. The more honest ones, at least, acknowledge that the "ticking bomb" is most unlikely and merely serves as the thin end of the wedge. The basis view of torture proponents is that torture is necessary in some cases short of a true ticking bomb, and we should therefore legalize it so as to avoid elaborate subterfuges in which we do what is necessary while pretending not to.

Charles Krauthammer proposes, after presenting a ticking bomb case to prove sometimes torture is allowed, "However rare the cases, there are circumstances in which, by any rational moral calculus, torture not only would be permissible but would be required (to acquire life-saving information). And once you've established the principle, to paraphrase George Bernard Shaw, all that's left to haggle about is the price."

Former CIA agent Reuel Marc Gerech offers a more plausible scenario, "[S]uppose . . . soldiers capture members of Al Qaeda and their computers, and learn that the group has advanced plans for striking American and European targets, but we don’t know specifically where or when." Reuel's argument is that torture will be used in a case like that, whether we admit it or not, so we are better off legalizing torture so we can control it instead of outsourcing torture to an Arab ally.

Krauthammer proposes to allow torture without restraint in true "ticking bomb" emergencies. In case of "the slower-fuse high-level terrorist," he would allow a handful of trained specialists to use inhumane techniques with approval of the Cabinet or some sort of torture warrant. "The principle would be that the level of inhumanity of the measures used (moral honesty is essential here--we would be using measures that are by definition inhumane) would be proportional to the need and value of the information. Interrogators would be constrained to use the least inhumane treatment necessary relative to the magnitude and imminence of the evil being prevented and the importance of the knowledge being obtained."

So, having admitted the thin end of the wedge by acknowledging necessity (in the legal sense) as an affirmative defense to torture, how do I respond to arguments like this? Essentially, by standing by the basic underlying principles of legal necessity.

Yes, it is possible to construct a hypothetical scenario that would justify torture. It is easier to develop a hypothetical to justify most other crimes such as breaking and entering (the cabin in a blizzard), arson (burning down a house to stop a forest fire), escape from prison (fire, flood, earthquake, death threats, etc), or theft (Katrina). Does that mean we should drop the concept of crime on principle and limit ourselves to haggling over the price? No, it merely means that necessity can be an affirmative defense to a wide range of crimes, including torture. But the threshold of necessity is a hell of a lot higher for torture than for anything else.

What about the argument that since torture is bound to happen in some cases, we should legalize it so we can at least regulate it? That argument gets made a lot in the cases of drugs, prostitution, pornography, gambling and the like. But please note that these are all "victimless" (or perhaps more accurately, self-victimizing) crimes. The bound-to-happen-anyway argument is not one that gets made in the case of crimes involving a victim. Yes, murder, rape, theft, vandalism, etc. are undoubtedly bound to happen despite the best that law enforcement can do. But that is no argument for legalizing any of them. Nor is it an acceptable argument in the case of torture.

Finally, and most critically, what about the argument that torture is necessary? What about the "slower fuse," as Krauthammer calls it, the evidence of a terrorist plot, without quite enough information to thwart it? Yes, admittedly, torture becomes extremely tempting in cases like this. But the temptation must be resisted. If anything can justify torture, it is the legal principle of necessity: no other alternative exists. In this case, there are still alternatives. The bare fact that a terrorist plot has been partially compromised may be enough to persuade members to abandon it. The capture of leaders directing the plot behind the scenes may leave the terrorists in the field rudderless. And granting that these possibilities are nothing we would want to bet our safety on, once the government has partial information, there are any number of ways besides torture to shake the terrorist tree and see what fruit falls out.

Terrorist plans are fragile. When even partially discovered, they can be disrupted. Admittedly, terrorists are easier to thwart than defeat. It is better to capture a terrorist cell and put it out of action permanently than to thwart its plans and leave the terrorists free to fight another day. But then again, there is no guarantee that even with torture we would get enough detail to capture every conspirator.

People like Gerech and Krauthammer illustrate very plainly the temptations of torture. But these temptations must be resisted. The defense of necessity must be narrowly applied, lest it license general lawlessness. An absolute ban on torture, with necessity as an affirmative defense, just as it is with other crimes, and a lot of ingenuity in finding alternatives -- these are how we can defeat the terrorists without losing our soul.

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