Thanks to revelations that the U.S. government has been using torture techniques such as waterboarding on people it suspects of being terrorists, this post is overdue. I find it unbelievable that, in the year 2008, it’s actually a point of contention whether torture should be legal or not.
Discussions of this issue in the media inevitably return to the “ticking-bomb” scenario – where torture is the only way to extract information from a captured terrorist in time to prevent a devastating attack. But consider what would actually have to happen for this to come up. We would need to capture a terrorist suspect after an attack is planned and set up, but before the damage actually occurs; we would need to have certain and specific knowledge that an attack was imminent, but not specific enough to have thwarted it already; we would have to have made some investigative breakthrough that would enable us to capture one of the planners, but this breakthrough would not give us any additional information that would enable us to foil the attack ourselves.
This long string of unlikely coincidences makes it improbable that this is a dilemma we’ll ever actually face. We’ve prevented several terrorist strikes before they occurred, and we’ve tracked down the perpetrators of others after the fact. But to capture a plotter in the narrow time window that would force a ticking-bomb scenario – this is the plot of a Hollywood action movie, not a realistic scenario. To my knowledge, no such case has ever happened, and I doubt that one ever will. But still, in this improbable hypothetical, what would be the moral course of action?
Clearly, to say that moral principles require us to abstain from torture no matter what is at stake would be an absurdity. If respect for human rights forces us to sacrifice the lives of thousands or millions of people, all for the sake of not harming a plotter of mass murder, then we cannot realistically be expected to respect human rights. In this case, it could very plausibly be argued that torture is necessary in the same sense that violence is widely agreed to be permissible, as a means of self-defense.
Between these two heavy counterweights, I believe there’s a workable compromise. To safeguard human rights and protect citizens from their government, torture should be illegal, with no exceptions. If the highly unlikely ticking-bomb scenario ever arises, I would expect the interrogators to do what was needful – and then, afterward, to turn themselves in to the court and submit their actions to the judgment of a competent tribunal. If what they did was truly necessary, that necessity could serve as a defense. If it was judged not necessary, then they should be punished for their actions. This position respects the rule of law and prevents the corrosive consequences of permitting torture in general, while still acknowledging that rare, desperate circumstances might require desperate measures. And it goes without saying that any confession obtained under torture should not be admissible in court under any circumstances.
Other posts in this series: