[Note: this article was written around September 2003, but I feel it is relevant now. It is also unfinished, as should be obvious.]
In recent years, a longstanding disgust at the concept of torture has begun to be challenged. Torture is beginning to be seen as an acceptable weapon in the war against terrorism. The US has used “torture lite” on the prisoners held at Guantanamo bay. A British court recently ruled that a piece of evidence acquired through torture was admissible. In Germany, a policeman used the threat of torture to extract information from a suspect. [This whole paragraph needs researched in depth and expanded.]
[Description of sensory deprivation, comparison to Northern Ireland and Tim Shallice’s work. Conclusion: “Torture lite” is torture.]
[Some description of US attitudes to torture over the last 50 years or so might be interesting.]
The newly emerging attitude of acceptance of the legitimacy of torture is most likely a result of unbounded fear of terrorism. In our imagination, there is no limit to the destructive potential of terrorism. It is easy to picture millions dying after a dirty nuclear bomb going off in a major city, or biological or chemical agents being introduced into the water supply. Faced with a threat of seemingly infinite proportions, it seems as though any preventative measure, however outrageous, is justified. Especially so, since most of us can imagine ourselves as potential victims of terrorism but not as potential victims of state sanctioned torture.
Since the World Trade Center attack in New York, governments around the world have been using this fear to undermine domestic civil liberties. The promotion of torture is the next phase. At each step along this road – a road we have so far taken only a few steps along but which ends in a totalitarian state – we should stop and look back. If we pursue a purely militaristic strategy, the threat of terrorism will not go away – the situation in Israel should be proof enough of this. It is easy, when we live in fear, to hope that each small step along the road makes us safer. This is why we must now, and at every future step, look back and consider what the steps already taken have done for us, and equally importantly what they have done to us.
The utilitarian case for torture runs as follows. Torture, objectively speaking, is an evil, but it may give us information which could save lives, and it may be the only way to get that information. So, on balance, torture is justified in some cases where the information gained could end up saving lives.
The first thing to be clear about is that torture, if legitimised or legalised, will not be used only in cases where it will end up saving lives, but also in cases where it does not. The legal principle that people are innocent until proven guilty beyond all reasonable doubt encapsulates the moral truth that it is so much worse to wrongly punish the innocent than to let the guilty go free that we should err on the side of caution in passing verdict. The decision to torture an individual is both a guilty verdict and a sentence. As such, it should be subject to the same standards of “beyond all reasonable doubt”. But the nature of investigating terrorism is such that these decisions will always be made behind closed doors, on the discretion of individuals and on the sole basis of their own judgement. It is inconceivable that giving the state the power to torture will not end in cases of innocent people being tortured.
Secondly, even supposing that the individual is indeed guilty of being part of a terrorist group, torturing them is a de facto punishment. As a society, we reject the idea of torture as a punishment, but to accept it as a means of obtaining information entails also accepting it as a means of punishment. Even if our intention were only to extract information, we can’t escape the fact that it is also a punishment. Once the information is extracted, the experience of having being tortured remains and can never be taken away. This is not only a punishment, but a particularly brutal sort of punishment that we would not tolerate in any other situation, no matter the crime. To accept the legitimacy of torture would not be merely a matter of pragmatism and expediency, it would be to accept a deep and fundamental change in the basic moral code of our society.
There is one more aspect to the utilitarian case, the reductio ad absurdum. It goes like this. Consider the hypothetical situation in which an individual knows that unless he gets a piece of information from a terrorist, a nuclear bomb will go off killing millions of people. Surely, in this situation, he should be allowed to use torture? Fans of the TV series “24” will be well acquainted with this scenario. There are two points here. Firstly, legalisation of torture cannot, as discussed above, be limited only to cases like these. You either have torture wholesale or not at all. Secondly, if an individual were in such a situation, he would still have the choice of using torture even if it were not legal. The choice would be a personal moral one, and it would be on their own conscience. It is important to understand that the law is not and cannot be a substitute for individual moral judgement in particular cases, it is a mechanism for imposing order in a systematic way. We should consider laws based on their systematic consequences in practice not on their theoretical consequences in extreme hypothetical situations.