Prefatory Note

This essay was begun, and substantially completed, in 2009, when the topic of torture was being widely discussed. I have not sought to publish it until now because I wanted to let my thinking on the subject mature, and to be certain that I was not writing in passion what I would later regret. Two years have passed since then; my thinking on the subject, whether more mature or not, has not changed, and I stand by what I wrote then. Nor has the passage of time made anything in the essay obsolete; I have followed the literature on torture published in the last two years, such as it is, and find nothing new in it; for all practical purposes, this essay might have been written this morning.

I have two closely related but nevertheless distinct subjects: torture, and the torture debate that has taken place in the United States and other Western countries since the attacks of September 11, 2001. Torture has always been a highly controversial subject, generating what is by now a small library of literature, but the debate about it has been greatly intensified since those attacks1. Torture in the abstract is dealt with here largely for the sake of the examination of the debate: to express a view of the debate implies a view of torture itself, and that underlying view had better be made explicit if the thoughts on the debate are to be fully understood. The post-9/11 debate has not brought about a consensus, but does provide some insight into Western, and particularly American, attitudes, and it is those attitudes that are chiefly considered here.

What position on torture is the departure point here?

I take the view that torture is an evil; that like most human evils it cannot be entirely abolished without some change in human nature so profound that the creatures that emerged would be something other than human; that anyone not utterly divorced from reality knows this; that the studies that devote themselves mainly or exclusively to deploring torture or exposing its horrors are as useless as medical studies that devoted themselves to deploring disease; and that such studies not only accomplish nothing toward minimizing and mitigating torture, but effectively promote torture by diverting attention from the realities involved, leaving torturers free to do their worst because their deeds are hidden and unacknowledged.

The topic of torture is treated today much as cancer was in our grandparents’ or even our parents’ time; it was a disease so terrifying that people spoke of it in fearful whispers, and anyone suffering from the disease was treated as if he had a shameful secret. Even today we read obituaries whose subjects are discreetly said to have died from “a long illness,” but for the most part cancer and its victims have come out of the closet, and today’s cancer victim not only has a much better chance of survival, but is usually spared being treated as a pariah. There is reason to want torture, too, to come out of the closet, and be dealt with as we are now dealing with cancer.

For many people, particularly the highly educated and cultivated, torture is so repulsive a thought that they refuse even to discuss it; to accept it as a subject for rational discussion would be, they feel, to come close to legitimizing it. Their attitude is exactly that of the many during the Cold War who were horrified by any rational discussion of nuclear warfare, one that discussed it without devoting much if any time to the obvious point that any nuclear war would be terrible, and something very much to be avoided. Those who remember those days may also remember Herman Kahn, a political scientist who was at the time reviled as a monster by many because he tried to reason about the subject rather than simply bewail it. Today, with the prospect of a full-scale nuclear war with Soviet Russia gone, most can discuss the subject more calmly, but that of torture is much too live an issue to be treated with similar rationality. And to the extent that we cannot deal with it rationally, it will be dealt with irrationally--and in the sleep of reason some real monsters will appear on the scene.

The Nature of the Torture Debate, 1: the Character of the Participants

The debate has appeared mainly in the form of articles in the periodical press and of several books. This literature expresses a variety of points of view, but almost all of it is written by academics—by professors of law, of philosophy, of history, of theology, even of English literature. As a result its level of scholarship is high; that of relevance and usefulness rather less. This is a limitation that is to be expected, given that the authors are people who have neither tortured anyone nor been tortured; their number includes few if any of those, such as the criminal investigators, Special Operations troops, or CIA officers, who are charged with the detection and defeat of attacks on our society. If an ideal debate is one that presents all coherent points of view, then the torture debate to date has been far from ideal, since most of the debaters suffer from a déformation professionelle: having no hammer, they see nothing as a nail.

This one-sidedness is not due to a deliberate attempt to stifle discussion. If those who might actually be called on to inflict torture or oversee it or suffer it are very poorly represented in the printed records of the torture debate, that is because they are seldom members of the intelligentsia, not the kind of people who naturally turn to the written word, whether as writer or reader, when faced with a difficulty. And they are also generally under discipline, and not permitted to express themselves freely on sensitive matters even if they are willing and able to do so. One of the purposes of the present essay is to broaden the debate to include the thinking of these effectively silenced figures2.

The Nature of the Torture Debate, 2: Basic Terms and Distinctions

A. Torture inquisitorial and torture sadistic

A fundamental distinction that is seldom rigorously observed in the debate is that between the two purposes of torture: the inquisitorial, which seeks to extract some information or act of obedience from the victim, and the sadistic, which seeks to cause the victim pain for the torturer’s personal pleasure — the difference between torture as means and as end. Of course the two are not mutually exclusive in practice, and what started out as purely inquisitorial may easily drift toward the sadistic. But the two types can at least be distinguished conceptually, and in view of the generally academic character of the contributors to the debate, it‘s remarkable that so few of them seem to have noted the distinction, or, if they have noted it, been careful to observe it throughout their studies. The present essay is concerned only with the inquisitorial; the sadistic, a symptom of personal pathology, is considered only as a potential danger for the torturer who may start out as a pure inquisitor.

B. Torture prohibited absolutely, or permitted, but only rarely and with the greatest reluctance

Virtually all the serious literature on torture takes it as given that torture is an evil that, ideally, should be abolished. Once agreed on that, however, the writers split into two groups: a smaller one which insists that torture should never be permitted, no matter what the circumstances, and a larger group that concedes that torture is, in some extreme circumstances, an evil that must be countenanced, however reluctantly. But even writers of this larger group, having made that pro forma concession, refuse to face its implications, and usually devote the rest of the space at their disposal to warning us of the great evils torture entails. The implications that follow from a concession that torture is ever admissible will be noted later, but since I have charged some parties with evading unpleasant truths, I must show my own good faith by squarely confronting the evils of torture.

The Nature of the Torture Debate, 3: The Four Great Evils of Torture

There are four chief evils that writers on torture warn us of (apart, that is, from the obvious evil to the one being tortured): (1) torturing someone is no guarantee of getting the truth from him, since the victim will usually tell us whatever he thinks will make us stop; (2) torture is a slippery slope; we may begin with every intention of resorting to it only in extreme circumstances, and under rigorous control, but once a torturer’s inhibitions have been overcome, it will begin to seem quite normal, and be used routinely; (3) if we torture our prisoners, they will torture us when they capture us; and (4) torture is terrible for the torturers, too; they lose their humanity, their “souls.” These observations are of widely differing validity and significance.

A. It doesn’t work; the victim will say anything to stop the pain3

This is merely a comment on the efficacy rather than the morality of torture, and not very compelling even as such; it calls attention to a practical problem with torture, one with a practical solution. Torturers, if sane, are quite aware that the information and confessions they wring from their victims cannot be trusted; if they themselves are not, their masters are. The competent or at least well-supervised torturer, therefore, restricts himself to torturing victims he has good reason to believe possess important information, and seeks to extract first from those victims some information that can easily be checked for accuracy; if he can, he asks some questions to which he already knows the answers, just as trial lawyers do when examining hostile witnesses. In any case, arguing against torture on the grounds that it offers low returns on investment is doubly shabby: first, it is not true – many is the spy network or resistance cell that has been rolled up as a result of the torture of one of its members4 – and second, it gives up the moral high ground by implying that there would be less objection to torture, perhaps none at all, if only it worked better.

A few writers have claimed that forming a relationship with a captive through kindness and sympathetic listening works far better than torture or other forms of compulsion in extracting information from him. I note first that we are here still considering only the relative efficacy of torture, so that even if this claim were well established, it would say nothing about the morality of torture. But I think it unlikely that the claim is true, except in quite special and limited cases, even with respect to efficacy. Consider that it requires on the one hand an interrogator who can successfully sustain a neutral, even a friendly, posture toward a captive whom he knows to be profoundly hostile to him and his cause, and on the other a captive who is ready to respond to such an approach from one he considers a dangerous and evil enemy. Surely this combination of capabilities and attitudes cannot be common, and in assuming that he is dealing with a captive who is susceptible to such an approach, the interrogator is opening himself up to being manipulated by one who has no intention whatever of giving up useful information to the enemy, but sees in the situation great possibilities for misleading and even corrupting him. But the great problem with this method of extracting information from a captive is that, even when it works, it takes much time: time to build trust, to gradually soften the captive into willingness to reveal information — and time is just what the interrogator usually doesn’t have. In the great majority of cases, the value of military information dwindles rapidly with the passage of time; we find very little value in learning where the enemy was last week, or what the key to his coded messages was a month ago.

B. It becomes routine

The second of the great evils is a kind of hybrid of the practical and the moral. It is quite true that with familiarity torture, like any other practice, tends to becomes a matter of routine, just as killing outright becomes easier once the initial inhibitions against it are overcome. This danger can be greatly alleviated if not entirely avoided by strict supervision of the torturers by their masters. Of course even the strictest supervision cannot avert every abuse, every violation of official policy—nothing human is perfect—and even imperfect supervision is possible only where the existence of torture is officially acknowledged, which is the case in very few countries, the ones who practice it most ruthlessly often being the least willing to admit they practice it at all. Their hypocrisy has succeeded so well that the rare honest state that does acknowledge practicing some degree of torture, and does attempt to regulate it so that it is used only when extreme measures seem necessary, is considered a pariah among nations instead of, as it should be, a shining light unto them. Let this be a warning to those who refuse to talk about anything as horrible as torture; if you really want to minimize the use of torture, you must start by acknowledging not only its existence, but also the near certainty that it will continue to exist. Only after you have done so can you hope to minimize its frequency and mitigate its effects.

C. If we do it, so will they

The third of the evils it is claimed that torture may bring in its wake is that of retaliation; if we torture our enemies when we capture them, they will, we are warned, counter by torturing our people when they are captured. This argument shares the two defects of the argument that torture doesn’t work: it is merely prudential and self-serving rather than principled, and it is false. The threat of reciprocation, if we lived in a better world, would be a terrifying one, and perhaps sufficient in itself to end all debate on the subject of whether our side should ever resort to torture. But reality is such that this threat is an empty one, because our current enemies have no compunction whatever about using torture whether we do or not. There is not the slightest reason to believe that a complete renunciation of torture on our part would have any effect on them other than to reassure them that there is yet one more consequence they need not fear, and hence to make their behavior worse, if possible. There is nevertheless one truly frightening feature in the argument that we must abstain from torturing lest our enemies practice it on us: it shows a degree of naïveté on the part of those offering it that tells us that no amount of success in the field will ensure our victory over our enemies while so many of us entertain such delusions about them.

D. Torturers lose their souls

The fourth evil is the greatest, and does not lend itself to technical solutions—it is real, it is serious, and it is unavoidable. The overcoming of the modern Western man’s inhibitions about inflicting pain does him damage, robs him of part of his humanity, makes it near impossible for him ever to return completely to ordinary civilized life. But this is merely a terrible fact, and real life does not permit us to reject a course of action simply because it is terrible: the only alternatives may be even more terrible. Of course we will torture if circumstances are sufficiently exigent; all societies have done so in extremis, and so will we. And we will indeed pay a great price for doing so; we will “lose our souls,” just as moralists warn us we will. (Most of those who warn us that if we torture we will lose our souls are children of the Enlightenment who do not believe in the soul; what they mean is that we will lose our quiet consciences and our self-esteem, and their talk of losing our souls is merely an attempt to exploit an older system of belief that they themselves do not subscribe to.) To be precise, those who personally do the torturing or directly oversee it will lose their souls; we who simply benefit from that torture will not lose ours, because the authorities will have seen to it that the torturers do their work far away from us (it may even be subcontracted to a foreign country), or at least that the torture chambers were well sound-proofed, so that we can say, plausibly to ourselves and others, that we knew nothing of it.

When the emergency is over, we will discover with shock that our protectors have resorted to torture, and we will punish them severely or at least repudiate them symbolically for doing so. And this is a very traditional way to deal with such matters: scapegoats and martyrs will be sacrificed so that the people may live. The sacrifice will be necessary because we Americans need to believe that our rejection of torture as a means of getting information from our prisoners is due to our being nicer people than those who have adopted it, with the corollary that if we do torture, we will no longer be able to plume ourselves on being nicer than they—a prospect that seems to terrify many of us more than losing to terrorists.

What does the torture debate reveal about ourselves?

A. Evasiveness

As one follows the Western world’s, and particularly America’s, public discourse on torture, it seems more and more to be taking place in an imaginary graduate-school seminar, where human frailty, political realities, and the instinct of self-preservation are high-mindedly ignored, and conclusions arrived at—if at all—on the basis of wishes and aspirations. A typical example, chosen only because easily available, is an article by Bruce Hoffman, then head of the RAND Corporation’s Washington office.5 The piece deals with the question of whether torture is ever admissible in combating one’s enemies, but Mr Hoffman does not answer it; he merely poses it, and tells us how disturbing he finds it. He relates some interesting stories about the use of torture in other conflicts, principally the French campaign to pacify Algiers, and then confesses himself in a quandary: he loathes the idea of torture, of course, but acknowledges that there may be no other way, in some circumstances, to get timely answers to such urgent questions as ‘where did you put the bomb, and when is it set to explode?’ And on this inconclusive note, the piece concludes.

What is wrong here is not that Mr Hoffman has failed to come down on the right side of the issue, whether that is to renounce the use of torture absolutely, or to openly embrace it, or to take some intermediate position; the unsatisfactory thing is that his discussion proceeds as if the contest were between two abstract principles rather than, as it really is, a contest between fact and principle, necessity and wishes. Modern Western countries generally resort to torture only when they feel something of the highest value, such as their very existence, to be at stake; they adopt it not because some philosopher has convinced them that it’s a good thing, but because they feel compelled by exigent circumstances6. And deciding whether we will employ torture is not a matter of weighing arguments for and against it, but of our perception of the circumstances we are in; it is facts as we perceive them, not our values that will determine the matter. By the time torture is under active consideration, the clash of arguments and the weighing of principles are long past.

We argue issues like “Shall we torture, if necessary to prevent a greater evil?” and “Shall we bomb this dangerous enemy, knowing we will inevitably kill civilians?” as if they were merely exercises set by the convener of an academic conference. But it is of the essence of such questions that they do not arise in tranquil circumstances, conducive to reflection, but rather in extreme emergencies—in the midst of noise, terror, pain, and confusion—and when all the alternatives are terrible. And since discussion and study of such matters can take place only when we are secure and comfortable—that is, when our circumstances are most at variance with those we are attempting to prescribe for—it is all too easy to overlook the fact that this laboratory setting virtually guarantees that our conclusions, whatever they are, will seem utterly irrelevant to those in the situations we suppose we are addressing.

All of human history, and everything we know of ourselves, tells us that in what we judge to be extreme circumstances, when we feel our very existence or that of those we love is in imminent danger, we will resort to torture if we think that that will help to save us, or them. The great division is not between those who practice torture and those who do not, but between those who confront the issue of torture and those who seek to evade it.

B. Torture seen as sui generis, different in kind from any other weapon of war

I referred above to torture as the deliberate infliction of pain to gain information or obedience—in short, to achieve political ends. But with very little change, this is also a fair characterization of war7. In war, too, we seek political goals by inflicting pain on our enemies: using just the conventional, accepted weapons of war, we disembowel them, blind them, decapitate them, maim them, asphyxiate them, burn them, drown them, and otherwise inflict every form of suffering we can on them. As an inflictor of pain, torture is just another war weapon, and hardly the most terrible. But there is a distinction: when we use ordinary weapons of war, we do so, usually, in the heat of battle, as part of a supportive group, and —most important — at a distance; a distance great enough to ensure that we do not see or hear the suffering we are causing. (Another distinction worth noting is that in normal military combat, we are inflicting pain not on a helpless captive, but on those who are at the same time trying to inflict pain on us, and this buys us a further degree of protection from the feelings of guilt that plague the normally civilized man when he inflicts pain.) And these are distinctions with a difference, a huge difference: what we cannot see or hear is relatively easy to ignore, and what we do in self-defense, as part of a group, and in the heat of battle is something we do not normally feel shamed by; for many it is a source of pride, and may be rewarded by commendation, promotion, and medals. It is the distance between ourselves and our victims, though, that is the main exonerating feature; we have, for the most part, “outsourced” the waging of war, even when all the fighting is done by soldiers wearing our uniform; as for killing, we might say, our robot servants do that for us.

What we call torture, on the other hand, denies us those saving graces; it is done by particular individuals, hands on and up close, to other particular individuals, and no one involved can pretend not to be. In a sense, we might call the torturer the most honest of soldiers, the one who faces squarely up to what he’s doing. This, not the amount of pain inflicted, is the great distinction between military combat and torture. The aggregate amount of pain inflicted in combat is, if it matters, much greater than that inflicted by torture, but it is generalized and remotely administered pain, and hence does not force us to face what we are doing as does torture. The question that should be faced by anyone other than an absolute pacifist when trying to come to grips with torture is not “Can I condone the infliction of pain on my enemies?” but “Can I accept the dirtying of my own hands by the infliction of pain, directly on the body of my victim, as opposed to having someone else do it for me if possible, and in any case, keeping it at a safe distance?” To insist on total abstinence from torture is to say that nothing, absolutely nothing, is important enough to warrant the deliberate causing of pain to another human being — which entails absolute pacifism as well.

C. Double standards: the debate as it treats Abu Ghraib

By now, discussion about the abuse of prisoners at Abu Ghraib has practically disappeared from our journals and television screens. This is regrettable, since there is something of great value to be learned from the incident, at least for those who are inclined to learn anything from it. Our journalists, commentators, editorial writers, and other intellectual herd animals have so far done little but seek to outdo each other in decrying and deploring the humiliation, fear, and degradation inflicted on some of our prisoners; some have attempted to exploit it for partisan political purposes, claiming that the Bush administration somehow “created an environment” in which such things could happen.

To those seeking to use the Abu Ghraib incident as a political weapon against the Bush administration or the United States in general, I would call attention to the fact that the practices involved were exclusively of the sadistic, not the inquisitorial, kind. Nothing that has come to light so far indicates that any of the abuses reported were intended to extract useful information from the victims; everything indicates that they were practiced for the personal gratification of the abusers8. Since it is hardly plausible that “higher-ups” would be willing to risk their own positions just to create an atmosphere in which private soldiers could exercise their sadistic proclivities, without even the excuse that they were trying to extract information of military value, it is hardly likely that any such policy was connived at, let alone encouraged, by the military or political authorities. The stories and pictures that have emerged so far bring to mind nothing so much as William Golding’s Lord of the Flies, that grisly picture of what can happen when adolescents are allowed to run wild without adult supervision.

The aspect of the incident that is most worthy of remark, instead, is that American citizens uncovered the scandal, and got the government to investigate it and punish those involved. But this has brought us no credit in the eyes of our critics; rather we are asked to regard it as scandalous that our government, even though it did not attempt to cover up the misdeeds at Abu Ghraib, and indeed took action against those guilty of those misdeeds, nevertheless tried to minimize the publicity given to the episode. It seems not to occur to those who are, or pretend to be, outraged by official attempts to deal with the matter with a minimum of publicity, that those attempts were a perfectly proper, even mandatory, reaction on the part of our government. News of Abu Ghraib was obviously bound to inflame public opinion throughout the Arab world, and help recruit more fighters into the ranks of those presently fighting U. S. and allied forces in Iraq and elsewhere. Would the U. S. government not have been remiss in its duty if it had not tried to minimize Arab fury at the news, and thereby minimize the additional danger to our troops?9

The most important consideration in the Abu Ghraib matter, however, has been very little noticed. Throughout much of the world, including the “civilized world” of Europe, such abuses take place often; in many other parts of the world, they occur so frequently as to be taken for granted. Very few of these incidents are publicly reported, few even of that tiny minority are investigated, practically none results in punishment for the perpetrators—and these widely known facts provoke no outcry, no scandal; at most a shrug of the shoulders. The crime is so common throughout the world that most cases go unnoticed; what differentiates this occurrence is the response to it—which was an attempt to do something about it. The exceptional thing about the Abu Ghraib abuses is that the country whose citizens perpetrated them made no attempt to hide or deny the facts, but instead took steps to punish the perpetrators and to prevent a repetition—in short, the real Abu Ghraib story, however unpleasant, is a tribute to America.

But when such an incident occurs in America, or in a location under American control, the outrage lasts for weeks or months, erupts everywhere, and is greeted by many as final proof that America is a violent, immoral, hateful country. When such an incident takes place elsewhere, however—in Ruritania, for example—it is regarded simply as a deplorable aberration on the part of a small number of criminals or psychopaths, often called “rogue elements,” and we are regaled yet once more with the soothing assurance that most Ruritanians are honest, hard-working folk who must not be stigmatized because of the crimes of a tiny handful of their countrymen.

Even when torture and related abuses committed by other countries are far more serious, prolonged, and systemic than was the case in Abu Ghraib, it hardly seems to matter to “world opinion.” For example, during the long conflict between France and Algerian insurgents, torture was connived at if not directly ordered by ministers of state; it was regularly employed by the French Army, and its use was supervised by general officers of that army, some of whom are still defending the practice. But where was the international outcry against France? Who labeled France a pariah nation, demonstrated in front of French embassies, organized boycotts of French goods, called for tourists to refrain from visiting France, or demanded that the U.N. pass resolutions censuring French behavior? What penalty did France pay for its sustained, officially sanctioned policy of torture—and torture employed not because it was thought necessary to protect the French homeland from terrorist attack, but rather as part of an attempt to hang onto a rebellious colony?

No such consequences followed for France—but America must endure being reviled, even by some of its own citizens, as a nation of barbarians because of the actions of a handful of unsupervised delinquents. Very few Americans could be troubled to condemn France behavior in Algeria, but a large number of Americans condemn their own nation’s behavior in a far less reprehensible case. Americans practicing this stark double standard do not often condescend to explain or apologize; when they are somehow forced to defend the glaring disparity between their reaction to crimes committed by their own countrymen and those committed by foreigners, their reply is some variant on “Never mind what others do--you be good!” This very maternal injunction can be made only by those who are so safe and comfortable that they can ignore the realities that the rest of the world must face daily. We cannot, unless we are care nothing about surviving, ignore the behavior of those around us in deciding on our own behavior. As a house cannot be sold for much more than others of similar size and condition in its neighborhood, no matter what special attractions it may have, just so no one who wants to survive can rise much above the moral level of his neighbors — in morals as in real estate, location is very nearly everything.

The campaign against torture, if it is to be anything more than the flaunting of the moral purity and delicate sensibilities of the campaigners, must at a minimum include the decrying of torture even when performed by parties and countries that the campaigners approve of; either that, or it must allow that sometimes torture is the least evil of several evil courses of action, and must seek to place it in its proper rank in the scale of evil. The forgiving, “understanding” attitude toward torture when practiced by one’s protégés, combined with wearing sackcloth and ashes for doing so yourself, is offensive in the highest degree; nothing is more arrogant and condescending than to heap blame upon yourself for sins and crimes that you allow to others without comment, or even with a pat on the head. And if the campaign against torture is allowed to fall into highly partisan hands, and used to punish one’s enemies and advance one’s own interests, as the civil rights campaign often is, it will be discredited and ignored.

D. Absolutism as a precaution against sliding down the slippery slope

The British magazine The Economist a few years ago offered its readers an essay on torture10 under the heading: “Is torture ever justified?” The academic, almost Kantian tone of the title is enough to tell any experienced reader of the torture literature what the approach and the conclusion are going to be. In proceeding along the well-worn path to the expected conclusion, the writer of the piece points to the slippery-slope danger: once we do A, we find it that much easier to do B, and so on to C, D, and eventually Z. The trouble with the slippery-slope argument is that while it contains a truth, it is virtually useless as a guide to conduct—even the most commendable actions we ever take are good only up to a point, then start turning bad, and eventually become fatal if pursued to an extreme. The slippery slope is where all of us live; it is the natural habitat of the human race. If we are to take no chances of sliding downward, we must resign ourselves to total paralysis — the slippery-slope argument is itself a slippery-slope danger. (When that argument was used during the Vietnam War by defenders of America’s role, it was derided by critics as the “falling dominos” argument, and as such was discredited — but only under that name; under the “slippery slope“ name it has apparently regained credibility.)

Daringly, The Economist attempts to turn the tables, and pin the “merely theoretical” label not on the abolitionists who condemn torture absolutely, but on their opponents. In the introduction to the series of which the torture piece is the first installment, we are told:

A famous thought experiment asks what you would do with a terrorist who knew the location of a ticking nuclear bomb. Logic says you would torture one man to save hundreds of thousands of lives, and so you would. But this is a fictional dilemma. In the real world, policemen are seldom sure whether the many (not one) suspects they want to torture know of any plot, or how many lives might be at stake. All that is certain is that the logic of the ticking bomb leads down a slippery slope where the state is licensed in the name of the greater good to trample on the hard-won rights of any one and therefore all of its citizens.

The writer of this passage is certain of two things that very few others feel so sure about: first, that the scenario in which the police have captured a terrorist who knows where and when some horrendous act, nuclear or other, is to be perpetrated, is so unlikely as to be negligible; and second, that it “is certain” that the logic that leads to the torture of this fictional terrorist will lead to the loss of all our rights as citizens. Most of us, I think, even of those who, like the writers for The Economist, call themselves liberals, would regard the “thought experiment” as, unfortunately, far from fictional, and the loss of all our rights if we condone torture even in such drastic circumstances as far from a certainty. But at least the writer bravely and honestly concedes that refraining from torture and other police excesses “may cost many lives”—and having conceded the point, concludes “So be it.” An admirably courageous and high-minded position to take about one’s own death, but perhaps not quite so admirable when the deaths in question are those of an indeterminate but possibly very large number of other people, some of whom may be so graceless as to want to reject the bargain The Economist has elected to strike for them.

Among other fallacious elements in the argument the anonymous writer offers is his insistence on taking the well-known “where is the nuclear device hidden, and when is it set to go off?” scenario as one that must occur in just that form, and in full detail, if the argument it illustrates is to be given any respect. That scenario serves the purpose of putting the issues involved in the starkest, most dramatic terms, but it is only the most striking representative of a large class of events that are so far from being “thought experiments” that they can be found in almost every day’s newspapers. Forget the nuclear bomb part, and the possibility of a death toll in the hundreds of thousands; consider the far less extreme and not uncommon case in which a suspect in custody knows something about a missing person, perhaps a kidnapping victim — we needn’t even load the dice by postulating the victim is a child — that might enable the police to rescue him. If the suspect refuses to tell us where the captive is, are we to accept his refusal, and resign ourselves to the possibility that the captive may die, rather than torture the needed information out of the suspect? Since the writer in The Economist is willing to accept the death even of multitudes rather than inflict torture on a suspect, he would presumably find it easy to answer yes to the question just posed. Perhaps this more realistic and credible scenario may focus our minds on what that writer is proposing, and make it easier to decide whether we go along with his absolutist position.

E. Absolutism as prevention of corner-cutting

Another typical and similarly revealing disposal of the idea of torture: in a very brief review of a book on the subject11, the reviewer Mick Sussman rejects the idea of balancing the evil done by resorting to torture against the evil done if torture is proscribed, saying

Rather than trusting individuals to determine when torture would maximize happiness, many enlightened societies have opted for a blanket prohibition. Such moral absolutes have a utilitarian purpose: they act as restraints against shortsighted arguments for sanctioning barbarity in the name of expediency12.

I note in passing that it is hardly expediency that is offered as a justification for torture when one is offered at all, but rather — and sometimes truly — necessity; but never mind – Sussman is unlikely to be impressed by any attempt at justification, and would probably see this correction as immaterial. In any case, what is more important is his assurance that “many enlightened societies have opted for a blanket prohibition [of torture].” It is true that many nations today, whether enlightened or not, have formally abjured torture – just being a member of the United Nations entails that much -- but how many have actually refrained from it when they thought it necessary to protect their own vital interests? In virtually all cases, I think, such formal renunciation is accompanied by just what Sussman doesn’t want: a readiness to make exceptions when it seems to the authorities that it would “maximize happiness.” The formal renunciation does not prevent the use of torture; it is merely the tribute vice pays to virtue, and its actual effect is to prevent any rational discussion of torture, and thus to obstruct any possibility of actually minimizing, if not eliminating, its practice. Sussman’s review begins with the scornful remark that “scholars in thrall to a hypothesis can rationalize almost anything,” but it is his own absolute position that smacks of the academy, and of a refusal to give any consideration to worldly facts – the Nature whose power Bacon told us we must first acknowledge if we would overcome it. It is one more example of a preference for exhibiting one’s moral purity over having any actual effect on the world.

Some overlooked truths in the torture debate

There are some important truths that are seldom if ever admitted to the torture debate, although they would seem to be absolutely fundamental to a consideration of employing torture and other extreme measures in defending ourselves.

A. The one great democratic advantage in wartime

In wartime, democracies suffer several great disadvantages in their fight against the kind of enemies that democracies always face, whether organized states like Nazi Germany or loosely organized, mobile terrorists, but we do have one potential advantage, and it is a vital one: a democracy can temporarily adopt some of the characteristics of its enemies, and then when the crisis is over, revert to democratic standards. (As we often need to be reminded, the greatest president America ever had suspended habeas corpus when he felt it necessary to do so; and when the Civil War was over, that right was reinstated.) Dictatorships and terrorist groups, though, cannot temporarily adopt the methods of democracies — that path is closed to them; this is perhaps the only case in which the notorious asymmetry between an organized, rooted state and a floating, amorphous terrorist group works to the advantage of the former. And this flexibility, as I say, is a great advantage — quite possibly the only one — that democracies enjoy over their enemies in wartime. Anyone who would deny us the power to give up some of our cherished peacetime ideals for a while is going far toward crippling us in our war against dictatorships and terrorists — and, in supposing that rights once suspended will never be restored, showing both little knowledge of American history and little faith in the democracy that they are supposedly protecting by denying us that power.

B. Terrorists created the dilemma; terrorists are responsible for the inevitable outcome

Terrorists find it very easy to put their enemies in morally agonizing positions — a fact that may be the very essence of terrorism. In hiding among innocent civilians, and kidnapping and taking prisoners to use as hostages or human shields, they make it impossible for us to fight them without employing tactics we normally find abominable. These tactics include risking, and sometimes causing, casualties among those innocent civilians (or even our own citizens when they are being held hostage), and the infliction of torture on captured enemies. (Whether the supposed “innocent civilians” are always actually innocent, or are effectively accomplices of the terrorists, is a question that needs investigation, but I will assume for the sake of the present argument that they are innocent.) We are then faced with a choice between killing some innocent people and surrendering to the terrorists.

Of course this dilemma is not really new; in every war, we kill some innocents; by some standards, most of those we kill are innocent. When we drop bombs on enemy territory, even a known military position, we surely kill some who are not actively bearing arms against us; possibly we kill some who are actually sympathetic to us. But our modern conflicts with terrorists who routinely and deliberately retreat into the general civilian population the moment their latest military action is over exacerbates the problem greatly, making it impossible to ignore it, and the moral dilemma is, for some of our fellow citizens, so painful as to make it impossible for them to act.

There is a solution to the problem, at least in logic — and a logical solution, while seldom immediately effective, can have an effect over time as its cogency sinks in. It is this: the terrorists are the ones who have created this dilemma for us, and they are therefore responsible for its consequences. I trust that we in the West are still permitted the right of self defense; if the terrorists leave us no way to defend ourselves that does not risk the killing of the innocent, then they have forced us to take that risk, and the guilt for the consequences is theirs. This doctrine is well-known in criminal law under the name of felony murder: if in the course of the commission of a felony someone is killed, the felon is charged with murder, even if the bullet came from a policeman’s gun. Opponents of torture and other harsh responses to terrorism frequently claim that the proper way to handle terrorism is not through military action but through the criminal justice system; here is a case where their argument can be accepted.

C. The best — indeed the only — defense

America and the West in general cannot be defended defensively. Our own country alone is so vast, so complex, so rich in targets, so vulnerable just because so advanced, that the idea of protecting it by posting guards or even surveillance cameras at all critical locations is ludicrous. Half our population would have to be put into uniform and armed — and even then determined assailants would find chinks in our armor. Just closely guarding our borders with Canada and Mexico, and our Atlantic, Pacific, and Caribbean coastlines, is proving to be an enormously difficult and costly task that we cannot hope to succeed in for years, if ever, and that in addition arouses the resentment of our immediate neighbors. If America is to be really defended, it can only be through a strong offense; we must go after the breeding grounds of our enemies, and attack them on their territory, not wait for them to come to ours. (Here again opponents of “superficial” and “simplistic” approaches to terrorism should be gratified — in attacking terrorists where they train, recruit, and plan their next move, we are getting to “root causes,” just as our critics are always urging us to do.)

What Then Shall We Do?

If torture is inevitable in extreme situations, then one remedial step would be to avoid or abolish such situations — but this is as useless as all such counsels of perfection. What would not be useless would be to acknowledge that under some circumstances we will resort to torture, and to define those circumstances as precisely as possible, along with the tortures to be employed, the people authorized to employ it, and so forth. But this step cannot be taken openly, since the public — the public of most of the developed countries, or what was once called Christendom, at any rate — cannot accept it, so the possibility of dealing openly and honestly with torture is foreclosed. As a result of that squeamishness, even those who concede that under some extreme circumstances they would allow torture seem unable to face the obvious consequence of that admission: if there are any circumstances in which torture is to be practiced, then there must be preparation for it.

If there is to be torture at all, better to have it closely controlled than practiced by anyone in a position to inflict it in any way he likes. And if it is to be controlled, we must have a corps of torturers, schools and manuals of torture, and all the regulatory apparatus that surrounds governmental functions even of the most unpleasant kind, like the imposition of capital punishment. This cannot be done openly; what if it were done secretly? Also impossible; if the government took such steps without informing the public, how long would it be before someone leaked the secret to a reporter, and newspapers (or bloggers) “obtained” incriminating memos and e-mail messages? So the necessary steps — necessary if torture is to be practiced at all (and we cannot remind ourselves too often that even most of its most passionate enemies allow that there are some circumstances in which it must, or at least might) — cannot be taken by legal authorities, openly or covertly.

This leaves two possibilities: the first is that we make no preparation for torture at all, trusting either that the extreme circumstances requiring it will never occur, or acknowledging, like the heroic writer for The Economist, that they may, and accepting the results, however catastrophic, if they do. The second is that such preparations be made, and torture actually practiced, only not by legally elected or appointed authorities, but by people acting without legal authorization — vigilantes, if you like. This second possibility is the situation that obtains today: higher authority disclaims all knowledge of such things, while mid- and lower-level functionaries do what they believe to be necessary, and accept the risk of punishment later for doing so. Higher authority is restricted to hinting at what it wants with variations of what Henry II is supposed to have said, “Will no one get me the information I need from this stubborn fellow?” No one is happy about this situation, but no one is prepared to take any steps — whether toward forbidding torture absolutely or legitimizing it as a tactic in well-defined extreme situations — to resolve it. We in the West, particularly in America, have taken a lofty moral position, and now find ourselves unable to fully meet our own standards: we refuse to relax the standards, while unable to observe them in practice. In this predicament, we fall back on deception — self-deception and deception of others. And given who we are, and how we need to think of ourselves if we are to remain functional, this may be the best that can done for the moment.

Article Footnotes

1. Anyone wanting historical information might start with Edward Peters, Torture, Basil Blackwell, 1985, which includes an extensive bibliographical essay, and Pierre Vidal-Naquet, Torture: Cancer of Democracy, Penguin Books, 1963, which is about the use of torture by the French army in Algeria, and the spread of the practice to metropolitan France as the battle became a domestic one (hence the “cancer” in the book’s title). There are also rational modern discussions of torture in Alan M. Dershowitz, Why Terrorism Works, Yale U.P., 2002, and his “Torture of Terrorists,” in Shouting Fire, Little, Brown; 2002; Andrew C. McCarthy, “Torture: Thinking About the Unthinkable,” Commentary (July-August 2004), pages 17-24; Joseph Lelyveld, “Interrogating Ourselves,” The New York Times Magazine (June12, 2005), pages 36-43, 60, 66-69; Mark Bowden, “The Dark Art of Interrogation,” The Atlantic Monthly (October 2003), pages 51-76 and — particularly recommended — Philip Bobbitt, Terror and Consent, Knopf, 2008, Chapter Seven “The Strategic Relationship Between Ends and Means,” pp. 350-397, which gratifyingly espouses independently a number of the ideas offered here, and cites specific cases to support them. Many of the most useful studies of torture written since 9/11, including some of those listed above, are collected in Karen J. Greenberg (ed.), The Torture Debate in America, Cambridge U.P., 2006; Sanford Levinson (ed.), Torture: A Collection, Oxford U.P., 2004; and Darius Rejali, Torture and Democracy, Princeton U.P., 2007.

2. After writing this essay, I came across a book I wish I had known earlier: Chris Mackey & Greg Miller, The Interrogators (Little, Brown and Co, 2004). The entire book, written by experienced and deeply thoughtful interrogators of enemy combatants captured in Afghanistan, is one that ought to be read by anyone concerned by the wars the United States is currently fighting or likely to be fighting in future. But there is one passage, from page 477, that is so perfectly relevant to the present discussion that I must quote it here in full (italics supplied):

In all of the soul-searching over the scandal [of Abu Ghraib] and the effort to understand what interrogators do, there has been a familiar refrain — the adage that harsh treatment of prisoners only produces bad intelligence, that a tortured prisoner will say anything to stop the pain. That line has been recited for years by schoolhouse instructors and has gained new currency among those rightly condemning the abuses at Abu Ghraib. I know many experienced and fine interrogators who believe that tenet of interrogation doctrine wholeheartedly. But I don’t find it particularly persuasive. If a prisoner will say anything to stop the pain, my guess is he will start with the truth. Our experience in Afghanistan showed that the harsher the methods we used — though they never contravened the Conventions, let alone crossed over into torture — the better the information we got and the sooner we got it. Other agencies seem to have learned the same lesson. In its interrogation of high-ranking Al Qaeda figures, the CIA has obtained secret legal rulings from the Justice Department to use certain coercive methods, including one called water-boarding in which a prisoner is strapped to a board and submerged in water until he is sure he will drown. If coercion doesn’t work, why would the agency go to the trouble?

The reason the United States should not torture prisoners is not because it doesn’t work. It is simply because it is wrong.

Note that this affirmation of the tactical value of information extracted under duress is from authors who think that torture should not, despite its efficacy, be employed; theirs is not an argument for torture, and is therefore all the more credible.

3. The claim that torture doesn’t work is one of those flagrant falsehoods that nice people think they must pretend to believe in order to maintain their credentials as nice people; other such articles of faith — bad faith — are ‘Violence doesn’t settle anything’ and ‘Every human life is of infinite value.” In fact torture almost always works; if it didn’t, why would anyone except the pathologically sadistic torture? It works so well, in fact, that all nations use it when they feel it necessary, even though the torturers and those who authorize torture take great risk of severe punishment for doing so. The argument that those under torture will say anything to stop the pain is valid — and that “anything” includes, and often starts, with the truth. They tell the truth if only because, in the extremely stressful circumstances they are under, they are not likely to be able to fabricate a plausible lie; and because in many cases the truth of what the victim says can be immediately tested, so there would be no point in lying.

4. Bobbitt, Terror & Consent, page 380, recounts a typical case of torture that elicited crucial information, and enabled authorities to prevent a disaster. The near certainty that torture victims will sooner or later capitulate and reveal whatever information their torturers demand is perhaps the greatest reason for the elaborate compartmentalization practiced by all espionage and other clandestine organizations, despite the heavy price they pay in efficiency and good communications. And Robert C. Doyle, The Enemy in Our Hands (The University Press of Kentucky, 2010), page 347, after recounting the ordeal of Jeremiah Denton at the hands of the North Vietnamese, writes “Denton finally signed a meaningless confession about aggression and bombing. Real torture did its work well; the American prisoners would say or sign just about anything to stop the pain.”

5. A Nasty Business,” The Atlantic Monthly, January 2002, pages 49-52. (On the magazine’s cover, it’s called “Must We Torture?” and is grouped with four other articles under the general heading of “The Hard Questions.”)

6. Almost anyone can be forced by torture to confess to anything, but as a rule, in the twentieth century at least, torture is used to obtain true information.” —Leszek Kolakowski, Main Currents of Marxism (Oxford U.P., 1981), III, 87.

7. The decision to go to war should be understood as the decision to inflict unbearable pain on an enemy until he is rendered harmless, and the most humane way to do it is to limit its duration—do it fast with full fury.” — Maj. Gen. John T. Carley (ret.), letter to the editor of Armed Forces Journal (May 2009), page 8.

8. My point has since been confirmed by Michael Hayden and Michael Mukasey in “The President Ties His Own Hands on Terror,” Wall Street Journal (April 17, 2009), page A13: “Such a claim often conflates interrogation with the sadism engaged in by some soldiers at Abu Ghraib, an incident that had nothing whatever to do with intelligence gathering.” General Hayden was director of the CIA from 2006 to 2009; Mr Mukasey was Attorney General of the United States from 2007 to 2009. For a compact but thorough account of the Abu Ghraib event, see Robert C. Doyle, op. cit., pages 315-324.

9. Shortly after these words were written, Newsweek magazine publicly apologized for a story they had published, without proper substantiation, to the effect that some American personnel at Guantanamo defiled a copy of the Koran; this caused violent demonstrations throughout the Muslim world, and many deaths were reported as occurring in those riots. And more recently (May 2009), President Obama has decided not to release further photographs of torture or abuse inflicted by American troops on jihadist captives because doing so would enrage our enemies, and cause American deaths.

10. Is torture ever justified?”, The Economist (September 22, 2007), pages 71-2. The piece is the first in a series of articles on the erosion of civil rights over the last six years, and is introduced by a brief comment on pages 17-18 of the same issue, under the title “The real price of freedom.”

11. Bargaric, Mirko, and Julie Clarke, Torture: When the Unthinkable Is Morally Permissible. SUNY, 2007.

12. From his review in the New York Times Sunday Book Review, September 16, 2007