It's been a couple of days since the Senate released the torture report. The discussion in the press seems to concern (a) whether it really might be effective, (b) whether that doesn't miss the point, that it's wrong and that we should take the stance "we don't do that"; (c) whether the partisan bickering about the report--is it accurate? will it hurt us internationally?--will undermine any broader significance it might have; and (d) how other countries might respond to it--with violence, prosecution, admiration, etc.
A few days back I posted on my Facebook page a link to a piece in The New Republic entitled "We Will Never Know Whether Torture Works. That Shouldn't Matter." A friend then asked me if it was really true that its effectiveness doesn't matter. As he put it: "[T]he use of a flamethrower on [a] bunker is to protect the lives of one's own soldiers [and citizens], while in the classic "ticking bomb" scenario the use of torture is to protect civilian lives. So maybe there's more symmetry between the two cases than I've usually thought. But the difference remains that flamethrowers are effective in clearing bunkers, while torture is of questionable effectiveness at best. Would we consider flamethrowers acceptable were they ineffective, though still horrifying brutal, weapons? I think not. And would we consider torture permissible were it foolproof? Perhaps. So I'm not sure I agree with the article's conclusion that the question of effectiveness is irrelevant."
I thought this an excellent way of challenging the thesis that I had, I admit, too reflexively endorsed. So I wanted to explore what the best answers were. I'm no expert in the ethics of torture. I've read a bit about it, but it's not something on which I actively work. Still, it seems to me that one can rehearse the main possible lines of argument quickly. Doing so leads me to this tentative thought, that torture is bad for reasons having to do with its connection to political abuse. But I'd love comments from members of this web site. And I should add: curiously, there has been no post on this topic since Ralph Wedgwood posted in 2008. So maybe it's time to do it again.
Here, then, are my main thoughts: One reason torture might be prohibited is that it requires the torturer to aim at and track the infliction of pain, which should be an evil. (Think Nagel on the DDE). But there are many problems with this answer. One: there might be medical cases that require something similar ("Does this hurt?...") but would be acceptable if done for the good of the patient. Why isn't the good of others sufficient reason as well? Two: if it is so hard on the agent to torture, then give agent's an option not to do it. That doesn't require a paternalistic refusal to let them do it if they are willing to sacrifice themselves for the greater good. (Think Scheffler's criticism of agent-centered restrictions.) Three: the Catholic idea that one simply may not aim at evil seems appealing only if one buys into the whole Catholic system of thought about practical reason. If, instead, one accepts, as I do, the secular premise that deontology must be fundamentally patient focused, rather than based on a concern with the agent and her connection to the good, then this line of argument just won't get a grip.
Another potential reason is that torturing someone uses him simply as a means of achieving other ends, not his own. This too doesn't seem convincing. Punishment that aims at deterring others from committing crimes likewise uses some simply as a means. Yet I still believe in the justice of punishment when it is proportionate and the criminal "deserves" it, or has at least forfeited his right not to suffer it. When dealing with a terrorist, one might think they too have forfeited their right not to be used as a means of stopping further harm (at least harm related to terrorism). So while this justification works for a prohibition on torturing the innocent, it does not work for a prohibition on torturing terrorists to get information that would prevent terrorist acts from succeeding. Of course, it is sometimes hard to be sure that one has a real terrorist as the potential torture victim. But it can be hard to be sure that one is punishing the guilty too. Set the standard of proof high enough, and get on with it, one might say.
Another third potential reason is that torture is just too bad a thing to do to a person, worse than death. But is it really? Most who survive it are presumably glad to have survived it. That is, they would rather not have been killed. Nor is that likely to be the present glossing over the horror of the past. I imagine that many would not choose death at the time, or, if they would, they would feel that doing so was just momentary weakness.
With that, I've run out of basic hypotheses as to why torture is intrinsically impermissible. Maybe I've missed something, but I'm drawn to suggest an extrinsic hypothesis: that it is the sort of tool one does not want to admit into one's toolbox, because of the potential for abuse. While there may be cases in which it is justifiable, there is probably a slippery slope into being the kind of state that allows torture of domestic enemies. (Nor should a state permit private torture, again, given the potential for abuse.) Such states are common enough, and they are all horrific in terms of basic political freedoms. Moreover, it's hard to believe that this is just correlation. It seems, rather, that once one starts to think that those who are scary can be tortured (and it's noteworthy that the public seems more open to torturing "them," after having seen scary beheading videos), the list of scary people will grow to include the likes of Nixon's enemies list. Then our democracy, already pretty shaky, will be done.
Perhaps then it is best to say what sounds, on its surface, so thoughtless, and yet is said so often: we should be able to say of ourselves: "we don't do that." As a statement of "values" (or better: principle), it is a pretty important place to draw a line. Yes, it might be that the line presupposes that it's not often a tool of great importance. So effectiveness cannot be kept completely out of the discussion. But as long as we have adequate options in general for getting information (and I both think that we do and that there's no other plausible reason to endorse it; certainly, it seems unnecessary as a form of punishment), it should be categorically banned. That's the best I've got... either that, or I'm missing something, or Cheney is right.