As I write this, I can just hear my grade falling. In an attempt to (over)compensate for the professorial tendency to give higher marks to those who agree with them, Dersh admits that disagreeing with him might garner higher marks. However, try as I might, I still find his arguments largely compelling
Torture – does it work?
This is a great avoidance doctrine. If those claiming it does not were judges, they would be citing political questions and non-justiciability. If torture did not work, we would have no need to grapple with the tough questions we now face. Instead, like the question of pushing a fat man on train tracks to stop it from hitting people, the matter of torture would be relegated to the halls of academia – more specifically, the Philosophy Hall.
Instead, we do have to grapple with these issues. Torture sometimes works. if it did not, it would not be so widely (but secretly practiced) It is not a matter, as some protest, of the reliability of the information given. The 5th Amendment’s prohibitions are well placed, since a confession would be much less reliable if physically, or even psychologically, coerced. Instead we are dealing with the matter of prospective information, information that can be verified if before the person in question is released.
Confining ourselves to the category of torture that deals with information about impending acts may eliminate some real-life instances (such as sadistic guards, confessions and show trials, and Posner points out) but since those are easy questions, I will put them aside for now. In this restricted case, there is not incentive on the part of the torturer to obtain false information. The practice will continue until the information is verified. False information will still be obtained, but in that case it will be revealed by someone who is accepting the future repercussions, and is making that sacrifice for his cause. Misleading information is part of their strategy, and will have to be part of the calculus. But it is not a constant, and so we are dealing with the fact that sometimes, torture works.
Is Torture Ever Right?
Again I will cite Posner. No, torture is never right. However, sometimes we are faced with the choice of two wrongs. The wrong of causing a human being pain against the wrong his allies will cause to innocents, perhaps many. It is a terrible balancing test to have to do, and I can therefore understand the drive to find avoidance doctrines.
Just how to balance these wrongs is a widely disputed question. I do not think there is a right answer. Some say that to sacrifice the kidnapped child, the anthrax-poisoned city might be worthwhile. That what we give up when we lower ourselves to torture is too great a cost, no matter what is on the other side. There is validity in this argument, but few espouse it.
More common is a wavering in the so-called “ticking bomb” scenario, when the torture of one will save millions. Once we accept this as an example of one time torture may be allowable, we change the calculus. The question is not if, but when. We enter into a realm of myriad scenarios, countless combinations of factors on either side of the scale. Is it right when thousands are at risk? Hundreds? Just one innocent? Does it matter if that person at risk is a high school dropout or a Pulitzer Prise winning scientist? A seven year old with her whole life ahead of her, or a 90 year old man who will die within months? Does it matter if that person is an orphaned infant, with no self awareness, or a brain-dead vegetable, or has an IQ of an ape? If the last is worth torturing for – is an ape?
And how many must we torture? Ten terrorists to save one innocent? Does it matter if that torture is psychological? Sleep deprivation? If all we do is administer truth serum? Water boarding? What if that torture risks their life?
And what if we are not sure there is a bomb? We think the kidnapped child in question is dead, but we are not sure. We think he is lying about having anthrax. What calculus can justify torture then?
I do hate posting more questions than answers. But as you can see, all three of these categories can combine in a thousand ways, and each calculus is different. I am inclined to agree that in the most extraordinary of cases, in which the lives to be saved are numerous and the method of torture non-lethal, torture is the right thing to do. I am not quite sure where I draw my line, but it is somewhere before torturing ten people who may be innocent on the slight chance one may be harmed.
How Should We Do It?
As Dersh points out, this question can be unrelated to the last. It is possible to take th absolutist position advocating an all-out ban on torture, and still advocate for legal mechanisms. This is possible because torture is going on, whether legal or not. If it is possible to force it through review and make sure that an objective person is doing the balancing above, that is an improvement on the current situation in which the choice is left to an individual agent with no oversight.
While an articulable argument can be made on the other side – that it is better to keep it in secret, that legitimating it is too high a cost to control it – I do not find these arguments convincing. Nor are they novel – they are the reason for the current drug war, when legalization would decrease organized crime and the hazards of drug use. Our society has come out the other side, too, at least on the surface – better to legalize abortions than to subject women to the hazards of back-alley ones, since they will get them anyway. However, as I have never heard someone who is actually opposed to abortion make that argument, it has little force here. It appears that our country prefers the hazards of illegality to the governmental imprimatur of legality. In this sense, I will remain with the minority, as I do on the drug issue. The costs we are paying are too great for the slight benefit of clean hands. I think we exaggerate how much approval of a practice legitimizes it (see SCOTUS’s approval of Japanese internment in Koramatsu, which did not translate to or affect popular opinion)
I’m not so sure the torture warrant would work. The scheme assumes that just because there is a legal channel, people with take it. The scheme, however, is pitted against a longstanding tradition of practice which it needs to alter. Dersh seems to address this point when he argues that the necessity defense would be unavailable, and that absolute liability would attach when someone could have obtained a warrant but didn’t. But in a setting where there is an all-out ban and people are not prosecuted, this is a leap of logic. Would prosecutions and reportings of these instances increase just because a warrant mechanism is put into place? Against the reality of military culture, I find this doubtful.
He also cites the fact that the higher-ups give a ‘wink and a nod’ to those below them when telling them not to torture. I think in this lies the spark of possibility that warrants will change things. Higher ups might exist in a culture that wants to reduce liability. It is possible that when a mechanism is available, the calculus of our leaders will change, and they will seek the protection and lack of liability that most do. This would depend either on them considering the costs of obtaining a warrant low, or on the possibility of discovery of their covert approval. In the wake of Abu Ghraib, this is possible. But I don’t think it is probable.
And thus, the warrants work only if used. If, as with gun control, this means only law-abiding citizens will now be subject to judicial oversight, we have a problem. They will then have more of a likelihood of torturing; those that would have aided by the prohibition merely because it was the law will now add to the amount of torture going on. If the amount of covert torture continues under the radar, this means that the effect of the warrant procedure will be more torture.
Which gets us back to the question of whether it is ever justified. Assuming that the law-abiding, warrant-approved torture that will be added to the mix saves lives, the torture warrants may be an improvement. It doesn’t quite work the way Dersh wants and relies, as he does not want to, in the justification of some torture (indeed the assumption it can be a good thing).
So we have two possibilities for improvement. Either the judges will act responsibly, torture is sometimes a good thing to do, and there will be an overall benefit. Or, I am underestimating military culture and the warrants will decrease the amount of unjustified torture. Both possibilities turn on tough moral issues and moreover they turn on basic human nature, and the behavior of two sets of people. In this sense, they are unanswerable. I cannot get into the mind of a military commander or that of a judge. They are not uniform actors, and the effect will depend on which leaders and judges end up with these questions at their feet. These are unknowable, and so, therefore, are the effects of a torture warrant.