(via Tim Dunlop) Australian law academics Mirko Bagaric and Julie Clarke are apparently about to publish an article in the University of San Francisco Law Review arguing that the use of torture, even if it leads to "annihilation" of the tortured suspect, should be lawful and is a "morally defensible" means of interrogation in certain extreme circumstances! They outline their argument in this morning's SMH.
My immediate (and considered) reaction is that such a position is not defensible (morally or otherwise) under any circumstances. But whether it should be taboo even to discuss such issues, as some are arguing, is another question. For example, when does aggressive and somewhat intimidatory interrogation of a suspect become torture?
The hypothetical situation Bargaric and Clarke deploy to justify their argument predictably relates to September 11:
"Let's say that straight after the first plane hit in New York you had a person in custody who admitted they had overheard the S-11 organisers' plans and knew there were going to be further attacks, but then refused to say any more. In those circumstances you would start with a minimum degree of harm, if that didn't work, you would escalate it."And if that unfortunately resulted in an innocent person being killed, in those circumstances that would be justified. I think as a society we would accept that one person being killed to save thousands is legitimate."
But interrogators would seldom if ever possess even that degree of knowledge of what the suspect knew and could potentially tell them, let alone the additional knowledge that whatever information they might be able to extract would necessarily assist materially in preventing further deaths.
And in any event, is this an issue that we should approach by purely utilitarian calculation, or does it illustrate that Kant was right about there being irreducible moral propositions flowing from treating every person as an end rather than a means?
But what about the moral dilemma discussed in the immediate aftermath of September 11, which could easily not have been hypothetical had someone put all the available information together more quickly in the wake of the first plane hitting the World Trade Center tower? Is it morally justifiable to shoot down the other planes containing hundreds of innocent passengers in order to save the lives of thousands? Again, does it depend on the degree of certainty that the planes will be flown into a tower if we fail to act pre-emptively? Does it help if we know they're going to die anyway, whether we shoot down the plane or not?
And how does the "shooting down the planes" moral dilemma compare with that of torturing a suspect to extract advance information about September 11? Only a single innocent person's life is imperilled by application of torture (compared with hundreds sacrificed on the planes), and that person's innocence is only partial given that they know about something so horrendous and yet seemingly unreasonably refuse to disclose it even though that disclosure could prevent thousands being killed. But what if the suspect knows that she (or her children who are being held captive by the hijackers) will be killed if she talks? Does that make any difference to the calculus of the morality of torture?
Maybe we can reasonably reject torture as an option anyway, by application of rule utilitarian methods, without needing recourse to Kant or any other form of deontological approach. The probability of knowing enough in advance to be able to make a reasonable calculation of the utility of torture (i.e. about what the suspect knows and could tell us, and whether it could assist materially in preventing a major catastrophe) is so low as to discount the utility of making a general rule legalising torture. Moreover, that conclusion is fortified by the much higher probability that any legalisation of torture would be abused and frequently used in much less extreme situations than the one Bagaric envisions, whatever ostensible safeguards were enacted.
Or maybe application of the more complex, but also more difficult to pin down, virtue ethics can help us resolve the dilemma. It's difficult to imagine that we could label legalisation of torture as either virtuous, involving practical wisdom or tending towards eudaimonia. But since virtue ethics is mostly "agent-centred" rather than "act-centred", flowing as it does from Aristotle's old question of what is the good life and how does one live it, maybe it isn't well suited to helping us answer such a specific question.
What do you think? The price of liberty is said to be eternal vigilance. But what does that mean or require?
Update - John Quiggin and Robert Merkel also deal with the issue.
Ken, surely the rule utilitarian case is compelling enough, given the ticking-bomb scenario is so rare. Shouldn't you also factor in the considerable negative utility of the succor such a rule would give to those who currently use torture?
Isn't the main arguement against torture the simple fact that the "information" gained is unreliable?
When tortured, people will say almost anything to stop the torture. Plenty of well recorded examples of that throughout history.
The "annihilation" of subject would be tantamount to a death sentence based on suspicion. How could that ever get round the notion of "due process"?
Blank (and Robert)
I agree. I haven't read Bargaric and Clarke's article (since it isn't published yet), but I assume they're not actually advocating deliberate killing of suspects. Rather, I assume they're suggesting that extreme torture, which might accidentally result in death of the suspect/victim, could be justified in extreme circumstances. But, of course, even that would surely lack any element of due process. No doubt that irremediable difficulty is one reason why the Bush administration appears to be keeping suspects offshore for torture purposes, in such enlightened places as Egypt and Pakistan. The prospect of securing the necessary amendment of the US Constitution would be very small. Then again, there appear to be various Bush legal lackies who favour torture. Maybe Bush could consider offering Bargaric American citizenship and then appointing both him and Alberto Gonzales to the Supreme Court, where they could creatively re-interpret the 5th Amendment in a suitably 19th century laissez-faire manner.
Oh, not that Gonzales furphy again!
Requesting a legal opinion on what does and does not constitute torture is not the same thing as advocating torture.
The problem with trying to debate this issue is that it inevitably degenerates into political smearing of political opponents.
quick parish
and evil right on time too
What is it about humans against all evidence to the contrary that convinces us that live and let live is not a viable option?
Surely we are imaginative enough to be able to live opposing ideological lifestyles without destroying each other or the planet.
Or is violence and destruction sensible too. 'our nature'. That must be it.
so folks signing off on the blleedin bloody obvious till next time
"For example, when does aggressive and somewhat intimidatory interrogation of a suspect become torture?"
Good question. I hope Dr Bagaric's paper might provide us with his reflections thereupon. Until we see it I'm none-the-wiser as to how Bagaric frames 'torture' and I'm holding off on participation in any torchlit processions of foam-flecked indignation until we do.
This makes my stomach churn. Safely ranting on about torture in the knowledge it will never be applied to them. It's all very well to go on about the greater good, and oh well we tortured that one to death and they didn't actually know anything etc etc when it's never likely to be you. If one of them were in the same situation I think they'd change their minds pretty damn quick. There is no excuse for torture. Intelligence gathering should be better than that. If you have to resort to torture then you are doing something wrong.
Geoff
I've inserted a link to Bagaric and Clarke's article in this morning's SMH, which outlines their argument pretty well. Moreover, the fact that they condone methods that may result in a suspect's death clearly indicates that they're not just talking about denying someone a cigarette, or even stripping them naked and having a female army private point and laugh at their genitals.
The purpose of torture is normally more related to creating a climate of fear than any genuine search for information - see the link at my post:
http://larvatusprodeo.redrag.net/2005/05/17/tortuous-reasoning/
The purpose of left-wing posts about torture is more to smear the right than promote any serious discussion of the issue. See Mark's post at:
http://larvatusprodeo.redrag.net/2005/05/17/tortuous-reasoning/
The Indonesians (and a few others) think that drugs, including dope, are as bad as murder or terrorism as they give them the same death penalty. I'd assume that Bagaric and Clark think Corby should be tortured to within an inch of her life because so far she hasn't admitted to any useful information. Certainly the other Bali heroin smugglers should be tortured on this reasoning too as heroin may well kill more people than terrorism has.
FXH
'as heroin may well kill more people than terrorism has.'
yeah but you do actually have to choose to take heroin - whereas a bomb or aeroplane blasting your body is more of an imposition over which you have very little control.
True Jen, but I think FXH's reasoning still holds. If you are torturing people for the greater good, then it doesn't matter what it is they are doing, and whether involvement in the end process is voluntary or involuntary.
http://www.theage.com.au/news/National/Professors-torture-comments-terrifying/2005/05/17/1116095944612.html
"Professor Bagaric said he was not an authority on torture methods, but also said the preferred form of torture should be sticking needles under people's fingernails to cause excruciating pain."
According to story on the Age's website
"Professor Bagaric said he was not an authority on torture methods, but also said the preferred form of torture should be sticking needles under people's fingernails to cause excruciating pain."
Not much chance of that happening here, but maybe one day he'll back in Serbia, or Croatia, or wherever he comes from, and someone will stick needles under his finger nails to extract information from him.
Not that I'd wish it on him, of course.
Sorry Mark, but your comment was there when I was writing mine!
That should be, "wasn't there".
Seriously, this guy's judgment leaves a lot to be questioned. A journalist rings him up and asks him what kind of torture he favours, and he actually answers the question!!??
Not the sort of person who should be on the refugee tribunal, IMO.
Since anti-torture laws are routinely broken without a shred of utilitarian justification, why even bother to address the need to legalise torture? In practical terms, we have a restriction problem, not an enablement problem.
If a utilitarian justification actually existed, what chance that a nominally criminal torturer would ever be prosecuted? It's hard enough getting non-utilitarion torturers above the rank of corporal prosecuted, as it is.
Maybe the rationale for legalising torture is like the rationale for legalising recreational drugs - to attack the "black market" in torture. But since the black market is intra-State, not free enterprise, what's the point?
If you read Bargaric's attempted justification in this morning's SMH and Age, it is apparent that he is attemtping an ethical/moral apologia for torture rather than a utilitarian/consequentialist one, although there are some half-baked consequentalist arguments there as well (usually conflated with equally half-baked moral propositions). The article is extraordinarily incoherent as well as deeply offensive. I'll be interested to see whether the full journal article is as bad. It certainly wouldn't say much for the integrity of University of San Francisco's peer review process.
No probs, Dave - the first thing I thought when I read his comments in the Age was that he was foolish to talk to the media in those terms.
Perhaps in the interests of scientific rigour the authors of the paper could undergo various tortures so they can name the most effective, in their view. If one of them dies in the process, well then we know not to use that one, and that's got to be for the greater good, right?
What about people who sit through Big Brother? Torture, certainly- and iny information you get from them is gibberish. Case closed.
PB
Yes, although I've never had sharp needles inserted under my fingernails, it's hard to imagine that it could be very much worse than being forced to watch Big Brother. Luckily jen seems to dislike BB too, so I don't need to retreat to the bedroom to blog. At least that means I can stay in the loungeroom until Desperate Housewives starts - although I actually don't mind that in small doses. I'm much more partial to soap operas than "reality" TV shows. It's probably a sign of ageing and consequent grumpiness.
Isn't torture par for the course when conflict arises? i couldn't be absolutely sure but I'd say torture has a fairly long tradition. I'd say it's been going on for some time.
Given the practice will continue. What is the problem with regulating it?
Apart from the fact that regulation may not make much difference to 'torture'
Or would it? I might even read that article you know. Nah, Parish can yell me the guts of it.
"It's probably a sign of ageing and consequent grumpiness"
Naah, just those large breasted, 40-ish suburban women - every middle aged male's fantasy, or so I've been told.
Back to Bargaric. I know we're supposed to tolerate wacky academics and encourage their wacky ideas, but this guy is creepy. Needles under the fingernails, indeed. You wouldn't want to be a law student at Deakin accused of cheating on your exam ...
On the general question of torture - including the use of aggressive or intimidatory interrogation - maybe the old test of 'reasonable and proportionate' applies.
Early in the Iraq campaign, the right in the US got conspicuously agitated about what was arguably a case in point. A bunch of Marines holed up near Tikrit got reliable word of a suicide attack on them and the civilians they were protecting, and managed to capture one of the would-be attackers. They went through all the 'accepted' interrogation processes to no avail. Then the Colonel in charge took him outside, pushed his head in a sandpit, put the barrel of his handgun next to the guy's head, and fired a shot into the sandpit. The suspect then came good with the details of the plan and a major catastrophe was averted. For this the colonel was court-martialled and demoted, btw.
Without wanting to duck the moral and ethical issues involved, I think you could make a case that the colonel's action was both reasonable (no actual infliction of physical pain, but inducement of a state of fear of death) and proportionate (the lives of dozens of people, including civilians, were at stake). What happened at Abu Ghraib, on the other hand, was clearly neither reasonable nor proportionate, even though arguably less traumatic.
At least this kind of test avoids the moral absolutism and emotionalism that this article has generated around the blogosphere.
Rob
A fair point and a useful, challenging example. I'm not sure I accept that your example is reasonable or proportionate behaviour, but I'm not sure it isn't either. However, this is an argument about what constitutes torture and what doesn't, rather than Bagaric's argument that imminent danger of a major catastrophe justifies any form of torture. Maybe in situations of imminent serious danger (especially a terrorist attack, the engendering of immediate deep fear in a suspect, but not actual physical pain, might be justified. Ordinary and generally accepted criminal interrogation techniques often involve a degree of threat, both express and implied, of adverse consequences if the suspect doesn't co-operate. Your example is a substantial step beyond that, but then so is the threatened harm the interrogator is trying to prevent.
Much turns on what kinds of activities are defined as torture, Ken. I may have missed it but in the SMH article the authors do not define what they mean by the term. So it's difficult to form a position on the merits of their arguments.
Many people immdiately think of thumbscrews and hot coals, but techniques that do not cause immediate physical pain are still regarded as torture: sleep deprivation, hooding for long periods, etc. A few years ago the Israeli Supreme Court ruled these latter constituted torture and were illegal under Israeli law, much to the dismay of the IDF and the security services, one suspects.
When you consider the range of possible techniques that could be deployed - threats, fear, or ensory deprivation as alternatives to actual physical injury - I think it's a little simplistic to say never under any circumstances.
Rob
As I said in answer to a previous comment by Geoff Honnor, Bagaric and Clarke may not specify exactly what they mean by torture in the article, but they DO suggest that killing someone (accidentally?) under torture might/should be morally and legally justified in extreme circumstances. Therefore they clearly have in mind the infliction of extreme physical pain, since mental stress (engendering of fear) generally doesn't result in death unless the suspect has a weak heart or something. This is confirmed by Bagaric's off-the-cuff reference to needles under fingernails as a preferred method!!!!.
We can certainly sensibly discuss where the boundaries between torture and legitimate interrogation techniques should be drawn in a major terrorism prevention scenario, but that isn't what Bagaric and Clarke are doing. They're trying to make a moral/ethical case for torture in general, including severe and life-threatening physical pain methods, and that's deeply abhorrent on any reasonable view. This is not an issue where a principled apologia is possible in my view. Do you accept that infliction of physical pain is torture and always unacceptable? I think we need to be absolutist to that extent at the very least, otherwise we really ARE on the slippery slope.
Defining torture merely as "physical pain" isn't good enough.
Keeping a suspect in a cell without a comfy chair for a few hours will result in a sore bum. That isn't torture.
Getting a good definition won't be easy.
EP
I don't think defining torture in immediate physical pain infliction terms is really all that hard. But what about sleep deprivation, thirst, hunger etc? In ordinary definitions, this is torture. But maybe not in the case of a genuinely imminent suspected major terrorist event (as opposed to seeking general intelligence info on terrorism). And what about engendering humiliation rather than fear? This is mostly what they did in Abu Ghraib. In ordinary circumstances that is torture too, and utterly unacceptable in my view.
But what about where there is a reasonable suspicion of an imminent major terrorist attack? Again I'm less certain, but maybe it could be defended if you could make a strong consequentialist case for its efficacy. That's where I suspect the whole thing comes unstuck. As others have commented, any form of torture (including engendering immediate fear and/or humiliation) tends to extract "confessions" or information that are dubiously reliable at best. So is there a utilitarian point in accepting a more relaxed definition of torture in cases of reasonable suspicion of imminent major terrorist attack? I doubt it, but I don't reject it out of hand on absolutist moral grounds.
"I don't think defining torture in immediate physical pain infliction terms is really all that hard. But what about sleep deprivation, thirst, hunger etc? In ordinary definitions, this is torture. But maybe not in the case of a genuinely imminent suspected major terrorist event (as opposed to seeking general intelligence info on terrorism). And what about engendering humiliation rather than fear?"
Isn't this where we were earlier? It seems to me that Bagaric isn't advocating torture as routine punishment - more as an exceptional, extremity-driven solution - but I think we need to see what he is actually saying. Frankly, I have no clear idea what "torture" is. Clearly, to many commenters, it's anything the Bush administration does but I find that unconvincing. " I have to tell you - shocking though it may be - that "engendering humiliation" is a technique employed by police forces, universities and shop assistants all over Australia, on a daily basis.
The shrieking about crazy out-of-control academics is reminiscent of right wing shock jocks at their worst and just like them, no-one has actually sighted the guy's paper. Let's actually break the mould, give him the benefit of the doubt, and then read the bloody thing...
I'm not looking for a more relaxed definition of torture, but rather one that is realistic.
Not all pain is torture (even if it is deliberately inflicted), so we can't define torture as "any infliction of pain whatsoever". Example: A policeman drags a violently struggling suspect into a cell -- pain is inflicted but it isn't "torture". Things like this need to be taken into account.
Also, it's necessary to know what techniques can be legitimately used in interrogation. Electric shocks to the genitals are torture, but what about offering a cigarette only if a suspect confesses? The craving for nicotine can be unpleasant, but is it torture?
Telling a suspect that "your mates have confessed and we know everything" would undoubtedly cause mental anguish, but I'd call it a legitimate interrogation tactic and not torture.
These are questions that should be addressed when deciding what is acceptable and what isn't.
Is torture involving the infliction of severe physical pain always unacceptable?
In the case I cited it would have been. I think a reasonable person could accept that given the level and nature of the threat the colonel's behaviour was reasonable. If he had physically tortured the suspect, I think a reasonable person would say, hang on, he's got a company of highly trained, heavily armed soldiers at this disposal, sure there's a threat, but they're trained to deal with things like that, he went too far.
But try varying the scenario a bit. Say a small group of Marines were guarding a refugee encampment somewhere out in the sticks, and they catch a guy coming out who brags that he's planted a dirty bomb somewhere in the camp that's going to explode in 30 minutes wiping out everone, including the Marines, and won't tell them where it it. They search the camp for 25 minutes and can't find it. There's no time for any of the sensory deprivation techniques. At that point do they have the moral right to beat the answer out of him?
I'm going to morally wimp it and say I don't know.
Obviously though I do agree that the idea torturing someone to death is indefensible and inexcusable and it seems inconceivable that these guys can contemplate the prospect with equanimity.
Rob, your examples all seem to assume that these techniques will produce a truthful answer. That can't be guarenteed, and indeed if the person concerned is ideologically committed to the act of terror, is unlikely. You're making a lesser of two evils argument with no certainty that you will in fact avoid the greater evil.
The first case I cited was a real situation where the techniques employed did work, Mark. They did get the answers. As for the idea that ideological commitment is a barrier that won't break to physical pain, I think the real hard men would just smile quietly to themselves.
I'm not advocating torture; far from it. I'm just saying maybe it's not as simple as yes or no, and Bagaric and Clarke's ideas deserve to be talked about. As Geoff has said, we don't really know what their arguments are yet, at least not in detail.
This is a very old argument, actually. Remember the first Dirty Harry movie, where the Clint Eastwood character tortured a suspect to find out where a kidnapped girl was being held against a deadline for death? It caused a huge furore, some saying it would be justified in the circumstances, others not. I don't know we are any closer to solving the problem 30 years later.
Apologists for torture usually use utilitarian arguments. But in their examples the proposed victims are usually bad guys, so that in practice the torture has a back-up justification as punishment. This is why the most shocking aspect of the Bagaric-Clarke argument apparently is that it allows the torture of 'innocent people' as well, and why the two hasten to point out that those who protect bad guys are culpable in their own right.
But if the use of torture in a given situation can be justified on a *combination* of utilititarian and punitive grounds, then it should be able to rest on one of these grounds alone. That is, the apologists should be prepared to condone a plan to, say, kidnap Zarqawi's five-year-old son and threaten to torture the child if hostages are not released. By the same token, they should agree that, say, sticking bamboo under a crminal's fingernails is an acceptable form of punishment for some crimes, even when the accused hasn't yet been convicted by a court.
On the other hand, if neither of these justifications is acceptable individually, however extreme the circumstances, how can they suddenly become acceptable just because they are applied simultaneously?
Where do they argue for torture of the innocent, James? The article in the SMH specifically talks about torturing 'wrongdoers' and contends that such is only justifiable when its sole purpose is to save innocent life.
Ok, I've now been to
http://www.smh.com.au/news/World/Support-for-torture-sparks-row/2005/05/16/1116095908699.html
and if what Bagaric says there has been correctly reported it is indeed monstrous.
When people of a certain political faction start to muse that maybe torturing people, perhaps to the point of death, isn't as bad a thing as we've been led to believe by those limp-wristed latte-sippers, it's *entirely* correct to stand up and say "that's bloody stupid!"
What's *also* bloody stupid is for those who hold similar opinions of that faction to look at those standing up and say, "hang on, hang on, they're not actually torturing people yet, they're just saying it'd be a good idea if they could. You're all too excitable, and this discussion is bordering on anti-Americanism."
If it's anti-American to oppose torture, then America must be the most evil state about. Fortunately, it's *not* anti-American to oppose torture; it's just fucking sensible.
What are you babbling about, Mark?
You're a one, aren't you Rob. You managed to comment about this article from 17:30 until just now without having read it. No wonder you've been coming across real creepy tonight.
"Oh, that torture! Huh, I thought you mean the nice torture."
No, wbb, I was commenting on the SMH article that was actually *written* by Bagaric and Clarke, not the one that was linked to it.
Rob
I not only linked the SMH story you've just read, but also quoted the specific "it's OK to torture an innocent bystander with critical information" example that seems now to have at least partially changed your mind.
Mind you, although that's possibly the most obnoxious aspect of their argument, even arguing for extreme life-threatening torture of an actual criminal/terrorist suspect is appalling as well IMO. I guess it's there that we part company.
I have a big problem with the idea of torturing anyone, but *not* an insuperable one in the specific and limited case of someone known or reasonably believed to be responsible for the intended commission of a horrific crime who cannot by any other means be persuaded to give up information that would prevent that crime from occurring.
I have a big problem, *and* an insuperable one, with using torture (of any kind) against a person who might have incidentally or innocently come into possession of information that could prevent such a crime from occurring, and who refused to give it up to any other form of persuasion.
The Bush Administration is, at best, "open-minded" about torture. Are we to pretend otherwise when discussing torture -- or better yet, never discuss, let alone condemn, this evil practice?
If right-wingers like yourself are offended by discussions of torture, EP, it's not because there's something wrong with the discussion.
Ken, what I'm saying is that a soldier or police officer (or whoever) who is faced with a genuine last-ditch choice between (a) inflicting pain - and it would not need to be 'life-threatening' - on another human being in order to save the lives of tens, hundreds or even thousands of innocent people whom he or she had personally endangered, or to whose endangerment he or she had materially contributed, and (b) helplessly watching them all die is not going to find it as easy a decision as you seem to envisage. Which would be harder to live with afterwards, I wonder? That you had hurt one man, or that you could have prevented all those deaths?
In their own article, Bagaric and Clarke are only discussing torture in those 'in extremis' kinds of situations, not as a routine interrogatory technique. Of course if they or we are talking about innocents, it's completely different, and the issue of moral justification does not arise, not even remotely.
Presumably the actions of your hypothetical soldier would be governed by their own conscience, and could be judged later. What Bagaric and Clarke are doing is advocating the legalisation of torture on the pretext that these 'in extremis' situations justify it.
Rob
But what you're carefully ignoring is the point that I and others have made repeatedly, namely that the intelligence gained in such circumstances will more than likely be false or at best utterly unreliable. People will say anything to avoid/end the torture. Thus a utilitarian calculation leads to the conclusion that the very uncertain (and likely non-existent) gain from having a rule permitting legal torture in extreme cases is outweighed by the high probability of the rule being frequently abused, not to mention the "moral" reinforcement it would give to the numerous regimes which routinely use torture now in much more sinister circumstances. Any possibility of the democratic West applying pressure to them to end their dreadful practices would be right out the window. You've so far made no attempt to grapple with this point, and it's central to the whole issue IMO.
Yes, Mark, I would say such a person should act in accordance with what their conscience dictated,* whatever* the legislative framework, and face the consequences - in the court of public opinion (*not* merely that of the media, which isn't the same thing at all) and, if necessary, the law.
I also agree with Mark B. It's better to insist that individual soldiers act from their own consciences in unique and extreme circumstances of the sort Bagaric (and Rob) hypothesises. We should never prescribe a legal torture regime for reasons I've explained, but we might conceivably absolve an individual soldier of blame and punishment after the event depending on the circumstances and how propotionately he acted. Of course that puts the individual soldier at dreadful personal risk of punishment for an at least arguably moral resolution of a dreadful dilemma, but dreadful risks and moral dilemmas are inevitably present whatever course we take in such a situation.
I'm not offended by discussions about torture. In fact I welcome such discussions.
What offends me is when people start discussions by implying that all right-wingers liking the idea of torture, or that people in the US and Australia live in fear of torture because they have right-wing governments.
That's not discussion, that's smearing.
FYI, there is one ex-soldier who is not afraid to stand up for torture unequivocally -- Kev Gillett.
http://www.kevgillett.net/
In fact, he is the only person of any political stripe to defend the proposal in its entirety.
Every other bit of the left's dog-whistling is based on straw-men.
Ken, the utility of torture has generally been debated in the context of confession and self-inculpation. There is a strong body of opinion, for example (e.g. Hugh Trevor-Roper, as he once was) that the period of the great witch-trials died out in the mid 17th century - the Salem examples excluded - because the authorities lost faith in the efficacy of torture as a reliable means of extracting true confessions.
But its use to extract intelligence has not, as far as I know, been subject to that kind of informed debate, although the KGB archives, when fully opened, may yield some clues. To gasp out, yes I am a witch, or yes I am an American spy, if that's what the interrogators want to hear, will surely stop the torture. But if, as in my hypothetical example, you say 'The bomb is in location X', and it turns out that it isn't, the interrogatee knows he/she will be in for more of the same, and probably worse. So I don't accept your point and Mark's that the process is necessarily compromised by the likelihood of false outcomes.
And to reiterate again: we are only talking about in extremis situations, where all else has been tried and failed, and the consequences of not knowing notionally outweight the barbarity of the means of knowing. This is not an argument for the routine employment of torture.
So far in this debate, I've seen two examples where torture or the threat of torture was successfully used to extract valid information.
One involved German police getting information from a kidnapper/murderer, and another involved an American officer interrogating a bomber (literally the 'ticking bomb' scenario).
So just to complicate the debate, there are documented cases where such techniques did work in practice.
I don't advocate the legalisation of torture, but I think the whole issue has to be assessed in a realistic way -- and interrogators should be given specific guidelines as to what is, and what is not, permissible.
And, Evil, I'm not sure we yet have an answer from 'the other side' to the question: if an act or threat of torture against a culpable party could save the lives of a thousand innocent people - and *only* an act of torture could save them, since all else has failed, or there is not enough time for other methods - would it be morally justified?
Rob, the "not enough time" scenario has already been answered --- torture will likely *not work*. The victim merely has to mislead his torturers for long enough for the bomb to go off or whatever. "The bomb is in location X", "okay, I lied. It's actually in location Y", "strewth, well, maybe it's location Z?", "okay, okay, I think it's..." BOOM. The torturers will not have enough time to check leads, get back to the victim after each attempt, then torture them a little more, before heading out again for another location. I assume we're talking an extremely limited time-frame here, although it wouldn't surprise me if, were torture legalised, "not enough time" stretched to days, weeks, months, years, "sometime in the near future", whenever. The USA is *already* torturing people behind closed doors. If it becomes legal to do it out in the open, do you really think a restriction on time will work?
Let's talk about torture. We know "needles under the fingernails" is academia's favourite method (although I've attended a few lectures that suggest they need not use physical methods to inflict harm), might we try that? I understand General Pinochet's men were quite fond of sticking university students' heads in their own feces before shocking said students' genitals with electrodes, might we try that? There was this Japanese fellow I read about in some trashy pulp WWII story, who wrapped barbed wire around a sailor's stomach, then forced salt water down his throat. Might we try that? What's *your* favourite method?
For the sake of argument, let's suppose the gimme scenario is true (not the phrase "gimme scenario", it's a subtle but very important hint). Let's suppose there was a bomb, hidden somewhere in Manhattan which, in exactly six hours, will blow up and destroy the entire city of New York, murdering everyone there. Now let's suppose we have a suspect in custody, who is *guaranteed* to be the attempted murderer. Now let's suppose we know that he knows where the bomb is. Now let's suppose we've done everything we could within the timeframe allowed to find this thing. Finally, in desperation, we turn to the suspect. I reach for the needles, but you grab my wrist and inform me that the electrodes sound more your thing. Fine, if that's what turns you on. I grab a bucket whilst you go find a car battery. Ready? Set? GO!
All thoughts of doubt leave our minds entirely, as we listen to the screams of the evil bastard literally stewing in his own juices in front of us. We don't worry about whether or not we'll be able to disarm the bomb when we get to it; or whether or not this is actually the guy, and if not, does he really know anything; we don't even stop to think about whether the bomb *really exists* or whether it was just an overenthusiastic April 1st story on CBS. We're focussed on one thing: information.
With five minutes to spare, the suspect confesses and gives up the location of the bomb, and we run through town, find it, and dismantle it. We then each head home to wash off the blood, then fly to Washington to receive the thanks of a grateful nation, medals, and lots and lots of money. Thank you, Rob, without your assistance (and detailed knowledge of the Arab mind, particularly that part of it that objects to electrodes on the genitals) I could never have become the world-renowned hero I am today.
Thank God it worked. What if we'd been wrong?
nah I've godda go to work
Poor Parish be gentle with him today. Repeat something many many many times. It'll comfort the dull old dick. He's just out of the conflagration that is my frustration with you lot bleatin on and on in parallel repetiitive arguments.
The most boring men alive.
happy hunting - what is it that you are hunting for?
Once you start down the dark path, forever will it dominate your destiny, consume you it will, as it did Obi-Wan's apprentice.
(Yeah it doesn't prove anything, but at least Star Wars isn't as boring as you lot)
Trackback replacement:
http://52nd.blogspot.com/2005/05/this-will-get-me-tortured.html
My, aren't we getting all worked up?
What is most offensive about the article is the fact that someone decided to publish it in the first place. Ooooohhh...let's take the classic manifestation of the Kantian/Utilitarian dichotomy in relation to torture and turn it into what passes for serious legal scholarship...
Based on the excerpts I have read in The Age, it sounds like the work of third rate academics from a third rate law school published in a third rate journal.
The status quo works for me. Don't legislate or even provide guidelines. To discuss it is futile really, apart from the actual joy of the discussion itself.
The status quo is that I trust my countrymen and women who from time to time find thenselves with the disagreeable task of extracting a truth we need. At the end of the day if we need it by all means torture the innocent.
Jack Nicholson was right; I want them on that wall; I need them on that wall.
http://www.smh.com.au/news/National/No-role-for-torture-in-fight-against-terrorism/2005/05/18/1116361618820.html
James Hamilton chooses to "trust my countrymen and women who from time to time find thenselves with the disagreeable task of extracting a truth we need."
Maybe the countryman to trust is Neil James who wrote the Australian military's interrogation manual. He says torture not only doesn't work, but is counterproductive.
Evil Pundit, this is the guy who wrote your "... specific guidelines as to what is, and what is not, permissible."
"And, Evil, I'm not sure we yet have an answer from 'the other side' to the question: if an act or threat of torture against a culpable party could save the lives of a thousand innocent people - and *only* an act of torture could save them, since all else has failed, or there is not enough time for other methods - would it be morally justified?"
Hi Rob.
The other side here.
Yes, it would be morally justified. This, however, doesn't mean we give the government such power.
I would have thought that Cornelia Rau, Tampa and the schenannigans of US death-rows would be more than enough to show that governments simply can not be entrusted with power to torture.
Here are some questions for you:
Since animal testing of medicines and treatments slows down the release of life saving drugs, should we not simply test on humans right from the start and thereby increase the numbers of lives saved?
Since retroviral treatments discovered via genetic engineering will lead to the complete curing of cancer shouldn't we encourage human testing of gene therapies on those in nursing homes who are otherwise of no further use to society?
If everyone had a surgically inserted location tracker then crime would drop to almost nothing because we could always place people at the time and place of the crime. Shouldn't we insist that such trackers be fitted?
If you crash into a 4WD you are four times more likely die than if you had crashed into a normal car. Shouldn't we therefore ban 4WDs?
Alcohol and cigarettes should be banned because they cost society billions in avoidable medical treatment and kill thousands of people each year. Do you agree?
We know that religion has directly caused the death of millions. We should therefore ban religion, no?
James Hamilton wrote: "At the end of the day if we need it by all means torture the innocent."
James, who decides when we need it? Before you answer, please recall the activities of the police during Joh Bjelke-Petersen's government.
This is the second thread I've seen on this topic where Evil Pundit manages to comment at length without taking a clear position on the substantive issue.
For heavens sake EP, you're using a pseudonym that implies you should be a full-on supporter. Why don't you take a stand?
I don't know what to say to mark and harry but I'm sufficiently chastened by Ken's more recent post that, as possibly the worst offender on this thread, I'm not going to try. Everything I could usefully or non-usefully say on the subject I've already said, for what it's worth, which is probably little or less.
I really regret your decision to withdraw, Ken, and I do hope you reconsider. Troppo is a great blog and a welcome antidote to the snake pits and frying pans and wishing wells and echo chambers that we fall over all the time when we traverse the blogosphere. Probably we pick up some of the poison along the way, which accounts for our bad manners to some extent, though I don't claim it excuses them.
All the best.
Rob, Maybe answering the questions would be a first step, eh?
Please don't disengage Rob, we're getting to the real nuts and bolts stuff.
If you don't want to answer the questions, skip them and try this post.
"if an act or threat of torture against a culpable party could save the lives of a thousand innocent people - and *only* an act of torture could save them, since all else has failed, or there is not enough time for other methods - would it be morally justified?"
Yes, but so what?
The fact that you can argue that torture will be justified in this instance cannot be carried through to justify state empowerment to torture.
But that is the fallacious argument that the article made: that since an individual can act 'morally' in one ridiculously improbable instance this means therefore that the state can be considered responsible enough to be able to torture people even if they are innocent and even if they die.
It is patently illogical nonsense.
The chance of a real life ticking bomb where you (a) have the right guy, (b) know he has the knowledge you need and (c) know that he will give it under torture, is about as likely as the entire Australian continent being covered in a fine gold powder from meteorites made of solid gold.
Imagine if there was a continent sized nugget tomorrow. It would mean that the gold standard would no longer apply. In fact, the entire basis of world monetary value would be destroyed because gold would no longer be a rare commodity.
Shit! Quick, we better start making laws to allow the government to ditch the gold standard and use uranium or similar instead! Quick, before the meteorites start landing and the gold brings the world economy to a standstill and ergo the starts the destruction of modern society!
So, are we concerned about gold being devalued by a golden meteorite shower? No.
Why? Becuase the chance of it happening are so slim as to be statistically zero.
So, should we change the laws of this country to accommodate the chance of there being a gold meteorite shower? No.
So, should we change laws to accommodate a ticking bomb and torture scenario? No.
Why not? Because the chance of it happening are so slim as to be statistically zero.
Is torturing to stop a ticking bomb moral? Yes.
Is the chance of it happening sufficient justification to change the laws of this country? No.
Does torture actually work? No.
So, Rob, let me get this right: You maintain that a single instance of an individual being able to justify torture in a hypothetical and unrealistic situation is sufficiently compelling to see our nation change it's laws and stance on torture from total abhorrence and unacceptance to one of acceptance and decriminalisation even though we _know_ that torture simply doesn't provide the type of information that the hypothetical situation demands?
Oh, leave it out, harry.
Damnit, Rob, I was really having fun boring the shit out of everyone else... next comment might even have featured a postmodernist reading of penetration, or whatever.
And now you pop up and say we should all have more shame? Well, you're probably right.
"James, who decides when we need it? Before you answer, please recall the activities of the police during Joh Bjelke-Petersen's government."
I don't get quite so riled by Cornelia, Vivian and Johannes as much some here so it is probably not neutral ground on which we can clarify our positions.
For starters I am not sure I do want to specifically give the government the authority to torture nor do I wish to give my fellow countrymen official permission to undertake such acts. I guess I am making the point that at Abu Grahib and Guantanomo (apologies for spell checking laziness) and other places you are really at the pointy and nasty end of maintaining your way of life. I daresay it's not pretty in there and I dareay I would shudder if I knew. I'd shudder but would I make them stop? I'm not sure I deserve the right to be outraged because I am not sure what the consequences of removing their de facto authorities might be.
Taking Jen's comments (out of context) for a moment it inspires my position that this is an intellectual exercise and in a way it is not respectful to victims of torture (and torturers) to even write those papers or discuss them because it is so far removed from the actual acts.
And if it doesn't work as Neil thingy says then we can expect the Govt authorities to come out and say "Don't bother engaging in this debate folks. Torture doesn't work and we don't want the authority. Go back to your blogs and discuss the ABC, everything is fine here".
There is the Interrogator's Manual and there is interrogation. We have policies and procedures document here at my work up to here. Writing them and consulting them can be useful. Meanwhile I do my job. We all know this.
Rob, You are the biggest freakin hypocrit around. Your comment that I responded to was glib and I responded because it was glib. You asked a question, indictating that any answer you might have received you weren't happy with, and I answered accordingly. I in turn asked you a bunch of questions. It's what we do here. I give you a prime opportunity and you dismiss me. What gives? You claim you want debate and then don't engage. You claim to have nothing more to add and then when I broaden it up to new ground to show that there was stuff that you could add, again you don't engage. You claim you don't want an echo chamber and then get huffy when someone sticks it to you. What gives?
James,
Thanks for your post. I would like to explore it further because it's a view I haven't really seen before. I am genuinely interested.
The Rau etc is just there to illustrate that mistakes happen.
Our common ground is that neither of us want to officially empower our governments with torture.
Why are you "not sure I do want to specifically give the government the authority to torture"?
"I'm not sure I deserve the right to be outraged..."
I think you do, because everything that is done is done in your name.
"this is an intellectual exercise and in a way it is not respectful to victims of torture (and torturers)..."
I'm not sure I understand you here.
How is it not respectful? How can the act of discussing something be disrespectful?
"...to even write those papers or discuss them because it is so far removed from the actual acts."
The papers are directly connected to the actual acts because the guy talks about sharp spikes under the finger nails ie he is applying his thoughts directly to a mechanism.
"And if it doesn't work as Neil thingy says then we can expect the Govt authorities to come out and say "Don't bother engaging in this debate folks. Torture doesn't work and we don't want the authority."
You reckon?
I don't think so for a second. The government's MO is telling in instances like this. You will recall the Children Overboard Affair. When was the last time the government paid attention to an expert?
Harry our political and essentially philosophical differences are laid out very clearly here. We have different motivations.
That distasteful things like the death of innocents in war, the humiliation of prisoners etc, take place in my name does not overly concern me. I am just a person lucky enough to be living as a middle white male class male in a rich country. My name can be anything. In some places they'd call me a "crusading western infidel". They have a point, for what it's worth.
I do not support the legal right of governments to undertake torture because such legislation or even debate brings a matter out of the shadows and in the less than ideal world that we live in some things should probably stay in the shadows. Let torture remain the repugnant thing that is is. Let's not give it any legitimacy which may let it spread. That's why i do not support the proposal. But alone in my thoughts I have no problem with the "blowtorch and the pliers" (as they say in Pulp Fiction) if my western infidel lifestyle is threatened. No problem other than a bit of self indulgent nausea and a wish to remain ignorant. You see in spite of my coldly pragmatic position here, I back my culture and my country to be an essentially humane and decent one. When it is enforced militarily from time to time my conscience does not trouble me.
It does not really matter if it is disrespectful to torture victims and those who go through the trauma of inflicting it, that point was a little bit of handwringing on my part, bordering on "not in my name" levels. I only meant to say that when the debate is taking place so far removed from the battlefield it becomes a little, piss weak.
A useful discussion/debate about torture needs a torturer to participate. It needs people who have been trained to resist it and it needs some victims. Not instead of the community but as well as. The community itself is not enough. Yet the most useful discussion about torture should take place behind closed doors in various academies. What torture to use on whom under what circumstances to get what type of intelligence.
When I said "Don't bother engaging in this debate folks. Torture doesn't work and we don't want the authority." I was being sarcastic. You are right. It won't happen. But we agree for different reasons. I am guessing violent interrogation does work sometimes and I know that manuals exist for a lot of reasons other than to set down how things should actually happen. Neil James' book is just as likely to be used for whacking people over the head as it is for reading, that's my bet.
Rob, I just found a comment from you responding to an earlier post. I did not mean to imply that the academics concerned condoned the torture of the innocent. That was evil Dr Me speaking. I was referring to a situation along the lines of weakening a victims resolve through the torture of say a family member. Yuck. See it's so easy for me to be hardcore and macho safe and sound at a keyboard in a free first world country isn't it? That's what makes this discussion rather inpointless, and not only my contributions.
Jefferson, Franklin et al had some good points in their Delaration. Among others, they clearly make out a compelling case for limiting the powers of the state.
The other flaw in advocating torture is in increasing power to the state.
I'm surprised that so many on the right, who've been lecturing us for so long on how bad the power of the state is in economic and social matters, should imagine that it would be any better or more efficient in defence, security or police matters.
Never all that benevolent, in my experience.
James, having wondered and worried about this for a while, it seems a reasonable (at least to me) position would be:
DON'T change the law, because it would sanction a morally repugnant act, and as Don says would extend the power of the state over the person
IF a genuine 'in extremis' situation seemed to require the torture of an individual in order to save many lives, and a person felt morally and physically able to do it, they should do so, gut-wrenching though it is to contemplate it
LET that person then face the courts - of law, because they have been guilty of a crime, and of public opinion, because they were rying to save lives
JUDGE the person's actions against the tests of proportionality and reasonableness, and set the sentence accordingly.
I believe there is a defence (the lawyers here can correct me if I'm wrong) to knowingly breaking the law if the consequences of not doing so would be demonstrably worse than abiding by it.
Perhaps the system we already have is capable of dealing with 'torture in extremis' without the need for legislative change.
Rob, your view is akin to that described in a very good article by Mark Bowden on "torture lite" in the October 2003 issue of Atlantic Monthly. I blogged about it here:
http://dogfightatbankstown.typepad.com/blog/2003/09/torture_lite.html
email me if you want a copy of the article