No democratic nation today acknowledges the use of torture, although some probably employ it as a necessary evil in certain scenarios. Should any modern democratic nation acknowledge the utility of torture for gaining critical intelligence in today’s war on terror? What philosophical, moral, and political foundations shape and direct the answer to this question?
In April, as word of the limited but atrocious abuse of Iraqi prisoners by American soldiers at Abu Ghraib prison in Iraq exploded across the United States and the world, the atmosphere was ripe to address these questions. The Bush administration and practically all Americans expressed disgust and rage, and promised to ensure that such abuses would be prevented in the future. But more significant national debate never occurred. The opportunity was missed. But we must recreate the space for that dialogue: The mass and imminence of potential terrorist threats today and in the future dictates that we come to a better understanding of this area of national policy.
Law enforcement officials, lawyers, policymakers, and political philosophers often consider some variation of a “ticking time bomb” scenario when discussing torture for intelligence. This hypothetical situation poses the dilemma of what action is appropriate in a situation where many lives would be saved if one could extract the location of a bomb placed in a large building in a densely populated downtown area from the terrorist that had placed it. The threat is both massive and imminent. And from that scenario, arguments range from the Kantian?that torture is never an option, to Utilitarian?that one ought to consider methods that provide the greatest good for the greatest number of people. Jean Bethke Elshtaine, a political philosopher at the University of Chicago, recently framed the debate in terms of “neighbor regard,” and asked, “Where does it lie? With the innocent or with the guilty?” Is violating one’s moral conscience really the most important issue when multiple human lives are at stake? Furthermore, what happens when the threat isn’t quite so massive? Consider the appropriate action if a fanatic of some sort has poisoned several people with an unidentifiable substance. Would torture be appropriate in order to determine an antidote that would save just a few lives?
As a democratic society and the world’s leader, Americans must answer these intricate questions, and devise policies accordingly. In a 2001 L.A. Times Op-Ed piece, Alan Dershowitz stated: “I have no doubt that if an actual ticking bomb situation were to arise, our law enforcement authorities would torture. The real debate is whether such torture should take place outside of our legal system or within it. The answer to this seems clear: If we are to have torture, it should be authorized by the law.” Perhaps Dershowitz’ first assessment, that authorities would torture without hesitation, is correct. If that is true, his opinion that torture should be legally authorized is a much thornier issue. Seth Finkelstein of the Ethical Spectacle, asks:
“What is the purpose of the torture warrant? Is it an anti-hypocrisy measure, to force us, as a society, to confront what we are doing? To have a public record of the event, that the defense attorney can use in a trial? To allow the torture to be supervised, with proper medical monitoring, to guard against it becoming life-threatening? To officially provide for doctors to treat the torturee during and after the ordeal? Perhaps the idea is the simple belief that we can have legal torture, which is bad, but illegal torture would be worse. However, the obvious rebuttal is that we would end up having both legal and illegal torture, feeding off each other.
Dershowitz takes this into account, saying that, “We know from experience that law enforcement personnel who are given limited authority to torture will expand its use.” So despite some of the merits of an explicit legal warrant for torture, the idea remains highly problematic.
But amidst these intricate dilemmas, a larger one remains: Can torture actually provide reliable information? People will say just about anything to get torture to stop, and it is obviously completely unfeasible to thoroughly test the reliability of various methods on various types of individuals. If the U.S. is to sanction torture, the exact methods, durations, administration and oversight must be absolutely clear and linked to accurate results.
The utility, practicality, and morality of using torture for intelligence is such an important and inflammatory issue that it requires full consideration and resolution, which can only be achieved through an introspective national debate. As Dershowitz said, “Democracy requires accountability and transparency, especially when extraordinary steps are taken.” Torture is, arguably, the most extraordinary of tools, more extreme than even the death penalty. For that reason, American democracy requires a thorough national debate leading to explicit and well-understood policies on the use of torture for interrogation. We must disregard utopian tendencies, and cut to the realities to determine which evils are lesser, and how we can best manage them. As a world leader, other countries judge and justify their own actions against American standards. These standards must be high, and clear, but realistic.