As with so many other debates that have roiled our political waters lately, two things are true of the current torture discussion: it takes place on two very different levels, and the folks arguing for more governmental power and fewer individual protections are offering up intellectually dishonest arguments for their positions.
You might expect that the debate over torture would play out as empirical arguments in support vs. moral arguments in opposition. You’d be wrong.
Actually, there doesn’t seem to be much of a debate on the empirical level. The evidence that torture is ineffective as a method for interrogation must be overwhelming, because empirical arguments are made only by torture opponents. (In fairness, right-wing spiritual advisor and counter-logician Victor Davis Hanson asserts without citation that torture is effective. Yet even he abandons his knights errant and urges us to swear off torture.)
This is a major concession, and should be given much greater recognition. For those of us who oppose torture on moral grounds, the empirical argument is just gravy: we would oppose it even if it did work. But for torture fans, the empirical argument is essential: if torture doesn’t provide useful information, I am unclear on the point for the whole thing. If torture does not demonstrably serve a higher purpose, how do they distinguish their preference from pure sadism?
Rather than offering empirical support, our truncheon-wielding friends offer up some rather extreme hypotheticals. Typical of these contemporary Torquemadas is conservative pundit and racial profiling defender Thomas Sowell, who wrote this at the conservative website townhall.com:
If a captured terrorist knows where a nuclear bomb has been planted in some American city, and when it is timed to go off, are millions of Americans to be allowed to be incinerated because we have become too squeamish to get that information out of him by whatever means are necessary?
This question looks like the kind debated in freshman philosophy classes. While it might be a worthy subject in the abstract, in the context of our real-world situation, it is a profound act of intellectual dishonesty.
First, the question is a compete red herring. If Congress took this hypothetical to heart and wrote a law tailored to prohibit torture except in exactly this situation, would Grand Inquisitor Cheney be appeased? Of course not. He has fought to defeat all possible limits on torture in whatever circumstances please his withered heart.
But perhaps more important is the way in which this argument reflects a tectonic shift in the basis of our social fabric that has gone largely unnoticed and unopposed. The question is the innocent face of a dangerous slide down the slippery slope toward a police state.
Underlying every human construct is (or at least, should be) the acknowledgement of our own imperfection. Perhaps the only universal truth is that we will make mistakes. Intuition will fail us; formal processes will add rigor but not certainty. For example, when doctors test for diseases, those tests have error rates. If we screen for a certain marker to indicate the presence of a form of cancer, we may be fairly certain that a level of X indicates that there is no cancer, where a level of 2X offers near-certainty of disease. A threshold somewhere in between must be set such that all those over the threshold receive further tests and/or treatment. No one value will catch 100% of the sick while saving 100% of the healthy from expensive and unnecessary treatment. So where do you set the threshold? Scientists talk of the problem in terms of false positive (setting the threshold low enough that you miss few cases, but diagnose large numbers of cancer that turn out to be false alarms) vs. false negative (a higher cut-off that minimizes unnecessary treatment but misses some disease).
Any criminal justice system makes similar policy choices. Our founders, who would not recognize the imperial presidency today’s “strict constructionists” support, were willing to tolerate a very high false negative rate (that is, let many guilty men go free) in order to avoid the sin of false positives (convicting the innocent). That is why defendants are (in theory) innocent until proven guilty, and why we have trials by jury in which we require 12 people to be unanimous in finding guilt beyond a reasonable doubt – a remarkably high standard – before meting out punishment. And the existence of our Bill of Rights – the most important laws that distinguish us from other countries, and which today is literally honored mostly in the breach – is the legacy of smart and skeptical men who sought to limit the ability of the government to exert its will over individuals.
The clearest mark of a police state is the inversion of these preferences – the use of fear of disorder to accrete power in the military or executive at the expense of the rights of the accused.
Much of American political history has been about the tension between these two approaches. But since 9/11, the civil libertarian view has been utterly eclipsed by an ascendancy of fear. And so the “trust us” approach to torture is but one example of a much broader manipulation of the public’s fear of various boogey men -– al Qaeda and homosexuals today, communists and anarchists in years past -- in order to convince the herd to accept the “shared” sacrifice of certain liberties for the greater good. Then it was HUAC; today it is the Patriot Act and the rule of Thrasymacus: torture is permitted because it is the will of the stronger.
But the voices calling for the power to torture are concerned with neither the greater good nor the sharing of burdens. Those who would sacrifice your civil liberties and mine are running a shameless bait and switch. What they want to sacrifice on the altar of our ephemeral security is not anything dear to them. What they really seek is carte blanche for unchecked police power. They decide who to torture and when. They decide who, if anyone is punished for crossing a line that they refuse to draw. They want to deal with their enemies behind closed doors, and to decide without interference or scrutiny who is an enemy. The offer of safety from those who govern is hollow; the only safety with which they are concerned is the protection of their sinecures. The surrender of the civil liberties of the governed, however, is very real.
What the proponents of torture are really seeking is the removal of all consequences from their actions. In other words, what those who would torture really want is well removed from the realm of ethics and morality. It is craven manipulation, marrying self–interest with absolution for its pursuit. And self-interest without sacrifice is not a subject within the realm of moral discussion.
I think discussion of torture should always include the moral component, and I think we should be honest about it. So I want to ask a different question, since we are off in the wilds of extreme hypotheticals:
Assume we are in exactly your hypothetical situation, Mr. Sowell, but that torture has indeed been banned. Are you saying that you as a God-fearing Christian would feel bound by the law of man to allow millions to die? Are you saying that your God would not forgive a little torture or even killing to save millions of innocents? Would you be unwilling to risk jail to do this great good for a greater number? Then I assume you are opposed to this. And this.
If you really believe in some higher law, then you should be willing to pay a temporal price for your willingness to torture in its service. Then when the time comes, perhaps you can explain to your higher authority why you think making it safe for heathens like me to torture with impunity makes ours a better world.
I feel there is a strong categorical imperative against torture. I am also in at least some contexts a utilitarian. I honestly don't know what I would do if faced with this situation. But I do know that if I honestly believed that by doing something I considered wrong I would certainly prevent the suffering of millions, the illegality of my actions would not be a major factor in my decision. I would much prefer that my government declare torture illegal and risk jail in your hypothetical situation than sleep in my own bed in a country that condones such barbarity.
Moral decisions involve costs. What personal price would you pay to prevent the Holocaust? I would like to believe I am strong and noble enough not just to commit a personal wrong, but to pay the price for that transgression, to benefit the many. And I would hope that, when compared to the millions of deaths and countless other horrors prevented, my own punishment for murder would have only trifling weight in my personal calculus.
Doing the right thing often means paying a price. Ask Joseph Wilson. Ask Sibel Edmonds . Ask Bunnatine Greenhouse. Torture is, at the very least, almost always the wrong thing. I want my country to make sure that torturers pay a price, and I’d rather punish the one-in-a-million person whose actions are justified than encourage others with motives less pure to sin with impunity.
Originally published on Wednesday December 14, 2005