Not enough (official) torture in the world?

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A case for torture
By Mirko Bagaric (registration may be required)

Recent events stemming from the "war on terrorism" have highlighted the prevalence of torture. This is despite the fact that torture is almost universally deplored. The formal prohibition against torture is absolute - there are no exceptions to it.

The belief that torture is always wrong is, however, misguided and symptomatic of the alarmist and reflexive responses typically emanating from social commentators. It is this type of absolutist and short-sighted rhetoric that lies at the core of many distorted moral judgements that we as a community continue to make, resulting in an enormous amount of injustice and suffering in our society and far beyond our borders.

Torture is permissible where the evidence suggests that this is the only means, due to the immediacy of the situation, to save the life of an innocent person. The reason that torture in such a case is defensible and necessary is because the justification manifests from the closest thing we have to an inviolable right: the right to self-defence, which of course extends to the defence of another. Given the choice between inflicting a relatively small level of harm on a wrongdoer and saving an innocent person, it is verging on moral indecency to prefer the interests of the wrongdoer.

The analogy with self-defence is sharpened by considering the hostage-taking scenario, where a wrongdoer takes a hostage and points a gun to the hostage's head, threatening to kill the hostage unless a certain (unreasonable) demand is met. In such a case it is not only permissible, but desirable for police to shoot (and kill) the wrongdoer if they get a "clear shot". This is especially true if it's known that the wrongdoer has a history of serious violence, and hence is more likely to carry out the threat.

There is no logical or moral difference between this scenario and one where there is overwhelming evidence that a wrongdoer has kidnapped an innocent person and informs police that the victim will be killed by a co-offender if certain demands are not met.

In the hostage scenario, it is universally accepted that it is permissible to violate the right to life of the aggressor to save an innocent person. How can it be wrong to violate an even less important right (the right to physical integrity) by torturing the aggressor in order to save a life in the second scenario?

There are three main counter-arguments to even the above limited approval of torture. The first is the slippery slope argument: if you start allowing torture in a limited context, the situations in which it will be used will increase.

This argument is not sound in the context of torture. First, the floodgates are already open - torture is used widely, despite the absolute legal prohibition against it. Amnesty International has recently reported that it had received, during 2003, reports of torture and ill-treatment from 132 countries, including the United States, Japan and France. It is, in fact, arguable that it is the existence of an unrealistic absolute ban that has driven torture beneath the radar of accountability, and that legalisation in very rare circumstances would in fact reduce instances of it.

The second main argument is that torture will dehumanise society. This is no more true in relation to torture than it is with self-defence, and in fact the contrary is true. A society that elects to favour the interests of wrongdoers over those of the innocent, when a choice must be made between the two, is in need of serious ethical rewiring.

A third counter-argument is that we can never be totally sure that torturing a person will in fact result in us saving an innocent life. This, however, is the same situation as in all cases of self-defence. To revisit the hostage example, the hostage-taker's gun might in fact be empty, yet it is still permissible to shoot. As with any decision, we must decide on the best evidence at the time.

Torture in order to save an innocent person is the only situation where it is clearly justifiable. This means that the recent high-profile incidents of torture, apparently undertaken as punitive measures or in a bid to acquire information where there was no evidence of an immediate risk to the life of an innocent person, were reprehensible.

Will a real-life situation actually occur where the only option is between torturing a wrongdoer or saving an innocent person? Perhaps not. However, a minor alteration to the Douglas Wood situation illustrates that the issue is far from moot. If Western forces in Iraq arrested one of Mr Wood's captors, it would be a perverse ethic that required us to respect the physical integrity of the captor, and not torture him to ascertain Mr Wood's whereabouts, in preference to taking all possible steps to save Mr Wood.

Even if a real-life situation where torture is justifiable does not eventuate, the above argument in favour of torture in limited circumstances needs to be made because it will encourage the community to think more carefully about moral judgements we collectively hold that are the cause of an enormous amount of suffering in the world.

First, no right or interest is absolute. Secondly, rights must always yield to consequences, which are the ultimate criteria upon which the soundness of a decision is gauged. Lost lives hurt a lot more than bent principles.

Thirdly, we must take responsibility not only for the things that we do, but also for the things that we can - but fail to - prevent. The retort that we are not responsible for the lives lost through a decision not to torture a wrongdoer because we did not create the situation is code for moral indifference.

Equally vacuous is the claim that we in the affluent West have no responsibility for more than 13,000 people dying daily due to starvation. Hopefully, the debate on torture will prompt us to correct some of these fundamental failings.

Mirko Bagaric is professor of law and head of the Deakin Law School. This is a summary of a paper co-written with Julie Clarke, which is to be published by the University of San Francisco Law Review.

EDIT: somehow, the url in the headline got screwed up

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The eminently credentialled Mr. Bagaric wrote:

Given the choice between inflicting a relatively small level of harm on a wrongdoer and saving an innocent person, it is verging on moral indecency to prefer the interests of the wrongdoer.

Can one assume then, that due process is not necessary to establish that the person to be tortured is a wrong-doer?

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Setanta wrote:

Can one assume then, that due process is not necessary to establish that the person to be tortured is a wrong-doer?

I think that is a reasonable assumption, given Prof. Bagaric's analysis. As he states: "Torture is permissible where the evidence suggests that this is the only means, due to the immediacy of the situation, to save the life of an innocent person." Note, he doesn't say anything about due process or even proof. Granted, he talks about the putative torturee as a "wrongdoer," but I would guess that the standard by which one can deem someone a "wrongdoer" capable of being tortured in an exigent circumstance is somewhat lower than "beyond a reasonable doubt."

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So it would seem. Need i fear innocently wandering into a jurisdiction in which i might find myself the subject of Mr. Bagaric's tender ministrations?

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Setanta wrote:

So it would seem. Need i fear innocently wandering into a jurisdiction in which i might find myself the subject of Mr. Bagaric's tender ministrations?

Fortunately, Prof. Bagaric is just another ivory-tower intellectual, and an Australian one at that. Of course, there is no need to worry particularly about antipodean academics when there are torturers aplenty in this wide world.

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In the 16th century (Tudor era) it was assumed that a suspect would not give a truthful deposition unless he/she was first tortured or at least threatened with torture. It took us the better part of 400 years to move from that assumption. When I was in school, as a history major, this was presented has a prime example of how the rule of law had come to triumph in western or at least Anglo-American jurisprudence. What has amazed me is how quickly, over the last four years, that smug assumption and many other legal bulwarks that guarantee our life, liberty etc. have melted away.

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I once moonlighted transcribing the manuscript journal of a man who emigrated from Cambridge to the United States in 1831. He and his cousins went down to London, to have a little fun before he sailed. He recounted how one of the "entertainments" they had attended was a public hanging. He told how the condemned man spoke from the scaffold, protesting his innocence to the last. He then remarked that the man was obviously lying, because if he weren't guilty, he wouldn't be hanged.

The brute lies close beneath the civilized veneer, in my never humble opinion. Perhaps that is why i am overly fond of Hobbes.

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This is a behaviourist position.

I think it was Skinner who said-"woe betide a society that does without torture."Possibly in Freedom and Dignity or Beyond Freedom and Dignity.I forget.

Personally I don't agree.I find torture despicable because it uses human intelligence for evil and brutalises everything it is connected to.In a few hundred years,if all goes well,it will be deemed inexplicable.

There is a need to define "wrongdoing" and "innocent".

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I think Mr. Bagaric, as lawyers often do, falls into the trap of implicitly assuming that the practical consequences of a law are well approximated by the law's provisions. He argues, quite reasonably, that a limited amount of torture is a good thing to have. For all I know, this may well be true as a matter of practice. But I think Mr. Bagaric goes wrong when, true to his jurisprudential naivité, he concludes that the law ought to explicitly permit a limited amount of torture.

By contrast, I would contend that it is foolish to pass laws without considering the probability that people will sometimes break them, lie about breaking them, and get away with it. My personal opinion, admittedly based on nothing but gut intuition, is that this already creates considerable wiggle room in practice. Enough of it to make torture likely in those cases where it is indeed the lesser evil -- cases like the hostage scenario Mr. Bagaric is describing. Mr. Bagaric's case for torture is clever and sounds compelling, but only if one forgets that the law as imagined by a tenured intellectual can be a very different thing than the law as applied at the ground level.

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Granted torture of prisoners is wrong, and the perpetrators must be punished, does this differ the present war from any of the past wars? Is this unusual behavior compared to past wars? Were there not incidents of torture by misguided interrogators in past wars? I do not know for a fact that there were, but I strongly suspect that this is simply a very unfortunate thing that occurs in wars. Unlike our opponents, who seem to kill their prisoners quite a bit as a matter of course, when we become aware of this type of thing, we prosecute the offenders.

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Many of those who oppose the death penalty give as their reason, if they offer nothing else, the probability of executing an innocent person. From many others, the argument is also adduced that society is brutalized by a resort to capital punishment.

I asked Our Toddlin'TownJoe about the issue of due process, not because i for a moment suspected that such a point would have escaped him, but to point this up for others reading here. The recent application of DNA testing techniques to evidence preserved in rape cases has given a dramatic demonstration of the likelihood of false convictions. The disproportionate number of black Americans executed for murder in our history provides another example of the very real danger of the death penalty being abused to the detriment of our society as well as, obviously, the victim.

In the case of torture, the issue of due process is just as crucial, and for precisely the same reasons. Currently, black Americans are still routinely stopped by police officer in all areas of the country for the probable cause of "driving while black." Thanks to the tragedy of September 11th, people who appear to be of middle eastern origin can now assume reasonably that they will be subject to the same type of treatment.

In the months immediately after that incident, crossing the border from the United States to Canada often entailed being questioned by employees of immigration and naturalization--keep in mind that this was while leaving the U.S.--there was a level of official paranoia unlike any i had ever seen. On one occassion, one such officer doubted that i was a native born citizen. He then actually asked me about my ethnic descent. When i became irate and asked him his, he spluttered that he was no Arab. I asked him if he thought i were. He made fumbling and dull-witted remarks about my big nose and my curly hair. I asked him how many Arabs he had ever met with green eyes and skin as pale as mine. I didn't give him the opportunity to answer, i asked him if he knew what the Irish look like. I didn't give him the opportunity to answer, i shoved my birth certificate from the City of New York under his nose and asked him if he had any more stupid questions for me, because it was getting late and i didn't want to drive in Toronto in rush hour traffic.

The probability that Mr. Bagaric has the uncircumsized semite in mind is great. In his particular situation, he might also simply mean anyone with brown skin, anyone who is not obviously from Oz and of western European extraction. The potential for the abuse of such a method as torture is great. It arises from that lack of due process, and it glaringly entails a great possibility that people would be subjected to torture simply because their appearance were unfortunate in the eyes of an agent of enforcement, now entitled to set up as jury and judge on the spot. Furthermore, anyone who does not recognize that such a policy will brutalize its practitioners--in the direct sense, let alone such an effect on society--must live under a rock and never read. It is such a widely accepted tenet of child psychology that children who torture and kill small animals are potentially sociopathic or even psychopathic as to be considered unquestionably established. Were the state-sanctioned torturer not sociopathic or psychopathic to begin with, it wouldn't take much imagination to project what sort of brutalization that individual's character would undergo in applying torture, and what sort of person we would then be nurturing in our society's bosom.

This entire thesis is so wrong, for far more reasons than the few i've examined here, that i am frankly surprised that anyone reading here would give it the time of day. To those who are pondering this as possibly a justifiable thesis, i would say: would you want your child to grow up to one day become the state's torturer? Are you prepared to take the risk that one day your child might be the victim of such torture, despite innocence on the part of your child and those who thought themselves acting in good faith and with probable cause? This thesis stinks to high heaven.

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Thomas wrote:

By contrast, I would contend that it is foolish to pass laws without considering the probability that people will sometimes break them, lie about breaking them, and get away with it.

I agree with you, Thomas (that, in itself, is worth noting). But, to be fair to Prof. Bagaric, I think he takes this possibility into account. As he states:

The first is the slippery slope argument: if you start allowing torture in a limited context, the situations in which it will be used will increase. This argument is not sound in the context of torture. First, the floodgates are already open - torture is used widely, despite the absolute legal prohibition against it. Amnesty International has recently reported that it had received, during 2003, reports of torture and ill-treatment from 132 countries, including the United States, Japan and France. It is, in fact, arguable that it is the existence of an unrealistic absolute ban that has driven torture beneath the radar of accountability, and that legalisation in very rare circumstances would in fact reduce instances of it.In other words, according to Bagaric it is not a valid objection to argue that legalizing torture would increase its usage, since torture is already widely used. Legalization would, if anything, militate against the worst abuses by formalizing torture and regulating it. Now, frankly, I find that argument less than persuasive, but it is at least a perspective that deserves to be considered.

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Setanta wrote:

This entire thesis is so wrong, for far more reasons than the few i've examined here, that i am frankly surprised that anyone reading here would give it the time of day. To those who are pondering this as possibly a justifiable thesis, i would say: would you want your child to grow up to one day become the state's torturer? Are you prepared to take the risk that one day your child might be the victim of such torture, despite innocence on the part of your child and those who thought themselves acting in good faith and with probable cause? This thesis stinks to high heaven.

The primary reason why I found Prof. Bagaric's thesis so interesting, and thus worthy of a thread here, is this observation:

The analogy with self-defence is sharpened by considering the hostage-taking scenario, where a wrongdoer takes a hostage and points a gun to the hostage's head, threatening to kill the hostage unless a certain (unreasonable) demand is met. In such a case it is not only permissible, but desirable for police to shoot (and kill) the wrongdoer if they get a "clear shot". This is especially true if it's known that the wrongdoer has a history of serious violence, and hence is more likely to carry out the threat. There is no logical or moral difference between this scenario and one where there is overwhelming evidence that a wrongdoer has kidnapped an innocent person and informs police that the victim will be killed by a co-offender if certain demands are not met.I think Bagaric's analogy to the hostage-taker is compelling, at least on its surface. Surely we can agree that, in the case of the hostage-taker, it is morally permissible for the state to use whatever means, including deadly force, to subdue the hostage-taker and rescue the hostage. But is Bagaric right in concluding that there is no moral or logical difference between the scenario in which hostage-taker has a gun to the hostage's head and the scenario in which the hostage-taker's accomplice informs the police that the hostage will be killed if certain demands are not met? I am inclined to think that there is a difference, but I am not quite certain what that difference might be. I'd be interested in anyone else's opinion on this particular question.

(By the way, did anyone else notice that this thread got over 580 hits within the first twelve hours after it was posted? Can anyone explain this excessive level of interest? Did someone off-site, a blog perhaps, link to this thread?)

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I suspect that your scenario as offered here assumes the police have the accomplice in custody, or are reasonably certain of being able to take said accomplice into custody. My response would be that society expects its agents of enforcement to make every reasonable effort consistent with the ethos upon which it's laws are founded to apprehend those deemed a danger and to prevent criminality. As far as concerns the society of which i am a member, i would find it an horrendous hypocricy to hold sacrosanct the right to be secure in one's person and effects, to be free of unwarranted search and seizure, to be guaranteed the right of habeus corpus and of due process, to be protected from self-incrimination, to be protected from cruel and unusual punishment--and yet to suspend any or all of those rights, and especially the last, in a case in which law enforcement agents allege that a positive outcome would arise from the application of torture. If society holds that the rights enumerated in what is affirmed to be the supreme law of the land are never to be infringed, not only would allowing law enforcement agents to apply torture in selected cases based upon an allegation of that torture resulting in a positive law enforcement outcome be hypocricy, it would be an avenue to the erosion of all of those rights based upon more convoluted allegations. Let us refer to this as my slippery slope argument, while noting that my principle concern is the ethical divide between the guarantee of such rights at the same time as torture being countenanced.

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Interesting question about the number of views, Joe--perhaps this topic exercises a fascination for the membership hitherto "unrevealed" by other topical discussions.

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joefromchicago wrote:

Now, frankly, I find that argument less than persuasive, but it is at least a perspective that deserves to be considered.

I'd say about as persuasive, and as worthy of consideration, as "it isn't sound to argue that bank robbery should be illegal, since banks are widely being robbed already. It is in fact arguable that it is the existence of an unrealistic absolute ban that has driven bankrobbery beneath the radar of accountability, and that legalisation in very rare circumstances would in fact reduce instances of it." It's the perfect example for the kind of article that turns non-academics into anti-intellectuals: A dumb point, defended with the most impressive rhetorical fireworks.

joefromchicago wrote:

But is Bagaric right in concluding that there is no moral or logical difference between the scenario in which hostage-taker has a gun to the hostage's head and the scenario in which the hostage-taker's accomplice informs the police that the hostage will be killed if certain demands are not met? I am inclined to think that there is a difference, but I am not quite certain what that difference might be.

The most obvious difference is that inquisition under torture has, again and again, proven useless as a means of extracting information. I would have to look up my legal history, but I'm pretty certain that the Catholic Church gave up the practice not because it developed moral hangups about it, but because the information thus extracted turned out to be too worthless to bother. So, unlike in the hostage-taker's case, the benefit of torturing is dubious, while the cost in pain is the same.

The second most obvious difference is that the policeman in the hostage situation knows that a hostage has been taken, and knows who the hostage taker is. The prospective torturer, by contrast, commonly does not know whether an atrocity is being planned, and whether the person he tortures has information about it. Mr. Bagaric cleverly misleads his reader into believing that the typical torturer and the typical policeman are acting on comparably sound information, which they aren't.

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Setanta wrote:

I suspect that your scenario as offered here assumes the police have the accomplice in custody, or are reasonably certain of being able to take said accomplice into custody.

Yes. To be clear, I think Bagaric has this in mind:

Scenario 1: Hostage-taker is confronted by the police. He hold's a gun to the hostage's head and says that he will kill the hostage unless the police accede to his demands. Scenario 2: Hostage-taker's accomplice is captured by the police. Accomplice tells the police that the hostage-taker will kill the hostage unless the police accede to his demands.In Scenario 1, Bagaric contends that it is permissible for the police to kill the hostage-taker -- and I agree. Bagaric then argues that, if lethal force can be used to rescue the hostage in Scenario 1, why can't sub-lethal force (i.e. torture) be used to rescue the hostage in Scenario 2?

Setanta wrote:

My response would be that society expects its agents of enforcement to make every reasonable effort consistent with the ethos upon which it's laws are founded to apprehend those deemed a danger and to prevent criminality.

An excellent response, but doesn't it rest upon a particular value one places upon whatever societal "good" is served by the law? For instance, what if Bagaric argued that due process is subservient to public safety, and that the prime "ethos" of the law is the latter rather than the former? And if that's the case, wouldn't Bagaric agree with your statement?

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In that case Baragic would be suffering from either a severe delusion or a severe incomprehension of the principle upon which the enumerated rights are based--that all men are created equal. That principle informs the ethos that it is better to let the guilty go free than to deprive the politically and socially equal and presumed innocent citizen of life or liberty.

EDIT: The agents of law enforcement apprehend the accomplice. Pointing out that no reasonable person could doubt the complicity of the accomplice is irrelevant to the core principle of the assumption of innocence until guilt is proven beyond reasonable doubt through due process.

EDIT (bis): While recognizing, of course, that i address the ethos of the society of which i am member, and of which Bagaric is not. However, for whatever i may allege about the breadth and depth of my historical reading, it has rarely taken me very far into matters of jurisprudence and legislative principles outside of my society and its antecedants. Therefore, i do not consider myself, nor have ever billed myself, as competent to comment on the ethos upon which other societies found their principles of law and law inforcement.

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Thomas wrote:

I'd say about as persuasive, and as worthy of consideration, as "it isn't sound to argue that bank robbery should be illegal, since banks are widely being robbed already. It is in fact arguable that it is the existence of an unrealistic absolute ban that has driven bankrobbery beneath the radar of accountability, and that legalisation in very rare circumstances would in fact reduce instances of it." It's the perfect example for the kind of article that turns non-academics into anti-intellectuals: A dumb point, defended with the most impressive rhetorical fireworks.

Not surprisingly, others have raised the same point:

Liberty Victoria president Brian Walters, SC, attacked that proposal as illogical, saying, "this article is a stain" on Deakin University's reputation. "If you accept that torture is widespread and should therefore be legalised, why wouldn't we then legalise crime? Let's sell licences for people to practice their favourite crimes, criminals would be so much more accountable. That is the level of debate this argument turns on and it is absolutely pathetic," he said.Source(reg. may be required). Bagaric's argument here is also the kind of argument that is frequently made by advocates of drug legalization; in both cases, the argument is fatally flawed.

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joefromchicago wrote:

Bagaric's argument here is also the kind of argument that is frequently made by advocates of drug legalization; in both cases, the argument is fatally flawed.

I had a feeling you might bring up that one Smile

. You will remember, of course, that I didn't predict a decrease in drug use after legalization -- only that the increase would turn out to be modest, especially in hard drugs. Still, I am confident that on Mr. Bagaric's reasoning, you and I will eventually find a way to settle our agreements and reach a common misunderstanding.

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Not enough (official) torture in the world?

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