I. Practical Considerations
The problem of "ticking bomb" - rediscovered after September 11 by Alan Dershowitz, a renowned criminal defense lawyer in United States - is old hat. Should physical torture be applied - where psychological strain has failed - in order to discover whereabouts of a ticking bomb and thus prevent a mass slaughter of innocent? This apparent ethical dilemma has been confronted by ethicists and jurists from Great Britain to Israel.
Nor is Dershowitz's proposal to have courts issue "torture warrants" (Los Angeles Times, November 8, 2001) unprecedented. In a controversial decision in 1996, Supreme Court of Israel permitted its internal security forces to apply "moderate physical pressure" during interrogation of suspects.
It has thus fully embraced recommendation of 1987 Landau Commission, presided over by a former Supreme Court judge. This blanket absolution was repealed in 1999 when widespread abuses against Palestinian detainees were unearthed by human rights organizations.
Indeed, this juridical reversal - in face of growing suicidal terrorism - demonstrates how slippery ethical slope can be. What started off as permission to apply mild torture in extreme cases avalanched into an all-pervasive and pernicious practice. This lesson - that torture is habit-forming and metastasizes incontrollably throughout system - is most powerful - perhaps only - argument against it.
As Harvey Silverglate argued in his rebuttal of Dershowitz's aforementioned op-ed piece:
"Institutionalizing torture will give it society’s imprimatur, lending it a degree of respectability. It will then be virtually impossible to curb not only increasing frequency with which warrants will be sought - and granted - but also inevitable rise in unauthorized use of torture. Unauthorized torture will increase not only to extract life-saving information, but also to obtain confessions (many of which will then prove false). It will also be used to punish real or imagined infractions, or for no reason other than human sadism. This is a genie we should not let out of bottle."
Alas, these are weak contentions.
That something has potential to be widely abused - and has been and is being widely misused - should not inevitably lead to its utter, universal, and unconditional proscription. Guns, cars, knives, and books have always been put to vile ends. Nowhere did this lead to their complete interdiction.
Moreover, torture is erroneously perceived by liberals as a kind of punishment. Suspects - innocent until proven guilty - indeed should not be subject to penalty. But torture is merely an interrogation technique. Ethically, it is no different to any other pre-trial process: shackling, detention, questioning, or bad press. Inevitably, very act of suspecting someone is traumatic and bound to inflict pain and suffering - psychological, pecuniary, and physical - on suspect.
True, torture is bound to yield false confessions and wrong information, Seneca claimed that it "forces even innocent to lie". St. Augustine expounded on moral deplorability of torture thus: “If accused be innocent, he will undergo for an uncertain crime a certain punishment, and that not for having committed a crime, but because it is unknown whether he committed it."
But same can be said about other, less corporeal, methods of interrogation. Moreover, flip side of ill-gotten admissions is specious denials of guilt. Criminals regularly disown their misdeeds and thus evade their penal consequences. The very threat of torture is bound to limit this miscarriage of justice. Judges and juries can always decide what confessions are involuntary and were extracted under duress.
Thus, if there was a way to ensure that non-lethal torture is narrowly defined, applied solely to extract time-critical information in accordance with a strict set of rules and specifications, determined openly and revised frequently by an accountable public body; that abusers are severely punished and instantly removed; that tortured have recourse to judicial system and to medical attention at any time - then procedure would have been ethically justified in rare cases if carried out by authorities.
In Israel, Supreme Court upheld right of state to apply 'moderate physical pressure' to suspects in ticking bomb cases. It retained right of appeal and review. A public committee established guidelines for state-sanctioned torture and, as a result, incidence of rabid and rampant mistreatment has declined. Still, Israel's legal apparatus is flimsy, biased and inadequate. It should be augmented with a public - even international - review board and a rigorous appeal procedure.
This proviso - "if carried out by authorities" - is crucial.
The sovereign has rights denied individual, or any subset of society. It can judicially kill with impunity. Its organs - police, military - can exercise violence. It is allowed to conceal information, possess illicit or dangerous substances, deploy arms, invade one's bodily integrity, or confiscate property. To permit sovereign to torture while forbidding individuals, or organizations from doing so would, therefore, not be without precedent, or inconsistent.
Alan Dershowitz expounds:
"(In United States) any interrogation technique, including use of truth serum or even torture, is not prohibited. All that is prohibited is introduction into evidence of fruits of such techniques in a criminal trial against person on whom techniques were used. But evidence could be used against that suspect in a non-criminal case - such as a deportation hearing - or against someone else."
When unspeakable horrors of Nazi concentration camps were revealed, C.S. Lewis wrote, in quite desperation:
"What was sense in saying enemy were in wrong unless Right is a real thing which Nazis at bottom knew as well as we did and ought to have practiced? If they had no notion of what we mean by Right, then, though we might still have had to fight them, we could no more have blamed them for that than for color of their hair." (C.S. Lewis, Mere Christianity (New York: Macmillan, paperback edition, 1952).
But legal torture should never be directed at innocent civilians based on arbitrary criteria such as their race or religion. If this principle is observed, torture would not reflect on moral standing of state. Identical acts are considered morally sound when carried out by realm - and condemnable when discharged by individuals. Consider denial of freedom. It is lawful incarceration at hands of republic - but kidnapping if effected by terrorists.
Nor is torture, as "The Economist" misguidedly claims, a taboo.
According to 2002 edition of "Encyclopedia Britannica", taboos are "the prohibition of an action or use of an object based on ritualistic distinctions of them either as being sacred and consecrated or as being dangerous, unclean, and accursed." Evidently, none of this applies to torture. On contrary, torture - as opposed, for instance, to incest - is a universal, state-sanctioned behavior.