“Don’t tell me it doesn’t work. Torture works. Ok folks? Believe me it works—yes, absolutely.”
President Trump’s open support of the use of torture reignited a debate that has been glowing ever since the outbreak of the ‘war on terror’. “You have to fight fire with fire,” as Trump added—if terrorists play nasty, so will the United States.
But, of course, the debate long pre-dates 9/11, and it’s global. Torture is reputed to be rife under the increasingly authoritarian regime of Recep Erdogan in Turkey. It’s a routine part of police procedure in India and in Mexico. China, Egypt and North Korea are believed to be the worst offenders. Israel has openly used ‘moderate physical pressure’ as a ‘last resort’, and this despite its own Supreme Court ruling that torture is never justified.
Just this past March the European Court of Human Rights rejected a request to find that men detained by British authorities during the internment of Northern Ireland in 1971 had suffered what was described as ‘torture’; these men said they had been forced to listen to constant loud static noise; they were deprived of sleep, food and water; they were forced to stand in a stress position; they were beaten; most dramatically, they were hooded and thrown to the ground from helicopters—although near ground level, they’d been led to believe that they were hundreds of feet up.
It’s grim, disturbing stuff. “And that’s why there’s a universal legal norm prohibiting torture and that reflects an understanding that systematic, intentional, de-humanising, brutal treatment [of an individual] is degrading to our humanity and corrosive to society,” as Larry Siems, human rights activist, chief of staff of the Knight First Amendment Institute and author of The Torture Report: What the Documents Say About America’s Post-9/11 Torture Program, puts it. “That the prohibition is universal is a reflection of the fact that human societies are always going to feel some existential threat. It’s the one-on-one experiential horror of torture that the prohibition is rooted in.”
Then there are arguments made that, since terrorists are not a state party to the Geneva Conventions, they aren’t covered by their prohibitions anyway. Since 9/11 it’s all become a very grey area—unconvincing to many—for a very dark subject.
And yet Donald Trump is not alone. There are those willing to defend torture—that is, defend what many say is indefensible, defend the likes of what The Stanford Encyclopedia of Philosophy wincingly describes variously as being “practices [such as] as searing with hot irons, electric shock treatment to the genitals, inserting a needle under the fingernails, drilling through an unanestheticised tooth…”
The celebrated lawyer Alan Dershowitz, for example, has made a case for state institutions to be able to issue torture warrants, much as they might a warrant for surveillance or to search a home; while Professor Fritz Allhoff of Western Michigan University, author of Terrorism, Ticking Time-Bombs and Torture, has made a strong case for torture’s limited use. And—given that even discussing the possibility of practising torture has become taboo—that is not, he says, an easy position to take. “It’s a risky subject and one reason why my work has got attention is that people see it as being the best version of the wrong argument,” says Allhoff. “Let’s just say that [defending torture] is not great for career opportunities.”
In part, a readiness to defend what many would call torture lies in a rebuttal of the use of the word to describe the treatment meted out. While the European Court of Human Rights agreed that those detained men in Northern Ireland had suffered “inhuman and degrading treatment”, they had, it stated, not been tortured. That’s a matter of degree, of interpretation of the measure of severity—whether or not it results in “serious physical injury, organ failure or death”, as the Pentagon’s notorious ‘torture memos’ of 2002 sought to limit definitions.
Indeed, the UN Convention Against Torture may rule torture illegal, framing it as the only crime other than genocide that every state must punish, no matter who commits it or where—but it also makes a distinction between torture and what it calls (and also opposes) “other cruel, inhuman or degrading treatment or punishment”. Water boarding, the practice carried out by the CIA in the interrogation of suspected terrorists in its Abu Ghraib facility, for example, may be a terrible experience, but—legally—it remains open to debate as to whether it, and similar acts, are torture. Then there are arguments made that, since terrorists are not a state party to the Geneva Conventions, they aren’t covered by their prohibitions anyway. Since 9/11 it’s all become a very grey area—unconvincing to many—for a very dark subject.
But Allhoff’s question is more precise: despite the repulsion that the idea of torture no doubt inspires; despite the claims that it corrupts the soul—not just of the person tortured, but of the torturer, even of the state and of society; despite claims that it’s a slippery slope—that one instance of torture is the beginning of the road to it becoming a state sanctioned tool; despite broader claims, by the likes of Rebecca Evans, associate professor of politics at Ursinus University, Philadelphia, that it damages the reputation of the state, complicates relations with its allies and suggests a hypocrisy that makes the recognition of human rights by other nations harder to insist on; despite—false—claims to its ineffectiveness in an interrogation situation—that the tortured don’t provide reliable information (that the very act of inflicting pain is said to negatively affect the centres of the brain required to be able to give truthful information)… After all this, can torture ever be justified? And he says yes.
“Some people admit that in principle, in rare cases, there could be some conceptual, abstract acceptance of torture. They’re comfortable with that because they’re not taking the idea on in the real world,” says Allhoff, “But others say that in principle torture is never OK, which is just implausible. Critics say that it’s better to have an absolute bar [on torture] because it’s too hard to nuance. But I think you can have semi-effective torture in limited cases without torture becoming institutionalised. The idea of a torture warrant doesn’t work—that amounts to a blank cheque. But if torture is the right thing to do—if intelligence indicates no other options in tackling a substantial and imminent threat— then do it.”
The argument—which does not support the use of torture for, for example, the benefit of sadists, for revenge, or as a means of states terrorising their own populations—is couched around what in philosophical circles is called the ticking time-bomb scenario: a terrorist has planted, say, a nuclear device in a city centre; bomb disposal experts have failed to disarm the bomb; it can’t be moved; it’s too late to evacuate the city; thousands will die unless the terrorist provides the code to switch the bomb off. It’s typically assumed in this thought experiment that it’s established that the terrorist is the man with knowledge of the bomb, that no alternative intelligence sources are available and that his information is quickly verifiable. Is it right to torture the terrorist in order to get the information that will save countless lives?
For utilitarians—the school of philosophy that favours those outcomes that bring maximum pleasure to the maximum number of people (or, alternatively, the minimum pain to the minimum number of people)—it’s a simple sum: one person suffers with the intention that many will not. Given that the one person in question is, in this scenario, known to be guilty, it’s a very human intuition to find the sum easier still.
It’s a simple sum: one person suffers with the intention that many will not. Given that the one person in question is, in this scenario, known to be guilty, it’s a very human intuition to find the sum easier still.
Public feelings about torture naturally reflect events—a BBC survey of 27,000 people across 25 countries, conducted five years after 9/11, found that more than one out of three people in nine of those countries considered a degree of torture acceptable if it saved lives. They also reflect often skewed perceptions. “Hollywood doesn’t help,” says Allhoff. “If you watch the likes of 24 in about every episode the hero defeats an imminent threat through torture—often using implausible methods not grounded in science, such that the military even wrote to the producers asking them to please stop showing torture that way because it radically miscalibrated the public’s expectations. Movies are not the best way for us to think critically about the subject.”
But is this arguably cliché thought experiment the best way either? “It’s a thought experiment that’s useful to show the way in which our intuitions lie, but you have to be careful,” concedes Allhoff. “It’s the cleanest way to look at the issues, and you can then start to pull the levers on the experiment to see how it might work in the real world. What if there was only a five percent chance of saving the people, for example? Intuitions get weakened as you change the parameters, and that’s as it should be.”
Yet not as weakened as one might expect. Alhoff’s research, a series of thought experiments conducted with a panel of 833 students, appears to mitigate worries about the idealisations posed by the ticking time-bomb scenario. It revealed that it matters whether the subject of the torture is a guilty terrorist or, say, his innocent daughter, but that concerns with the certainty of the situation are far less pronounced than might be imagined. A situation of uncertainty was put to students: whether a suspect should be tortured if there was a mere one percent chance of saving lives. But there was no statistically significant difference in responses regardless of whether the outcomes were certain or even this uncertain. Idealisations, in other words, don’t mess up our intuitions.
But the ticking time-bomb scenario has certainly divided opinion; the liberal US Senator Charles Schumer has publicly stated that most US senators would support torture in its circumstances. “There are likely some very few extreme situations in which torture of culpable persons might be morally justified in order to save innocent lives. [And] it is a legitimate thought experiment enabling distinctions to be drawn and possible courses of actions to be explored,” argues Seumas Miller, professor of philosophy at Charles Stuart University, Australia, who stresses that, either way, torture should never be legalised and a torturer always punished if found guilty, albeit leniently given the moral justification of his actions.
“However, thought experiments are frequently unrealistic and, therefore, from the fact that a conclusion might be rationally inferred from a thought experiment, nothing necessarily follows about what should be done in the real world and, especially what policies should be pursued or laws introduced,” he adds. “One-off unrealistic scenarios in thought experiments do not translate well into acceptable real world practice.”
“To torture is very human—a product of fear, panic, power, a sense of vengeance. I understand that. But where we fail is in not having an accounting for it. It’s a measure of human decency to make it right and until then justifications [like the ticking time-bomb scenario] are a red herring,” adds Siems. “That’s the only ethical example put for torture and that’s a philosophical hypothetical. Nobody has yet put forward a real world case.”
Only, they have. The Stanford Encyclopedia of Philosophy cites one: in New South Wales, Australia, in the height of summer, a woman inadvertently left the keys in her car ignition while she paid for petrol, giving the opportunity for a thief to steal it. Unfortunately, her baby was still in the car. The police advised the woman the thief would soon abandon the car, which he did. He was quickly arrested—but he refused to say where he left the car. Forty minutes in the heat would leave the baby brain damaged, possibly dead. Appeals to decency, reason and self-interest all failed. So the police beat the thief up. Realising the beating would go on until he told them where the car was, he did so—and the baby was saved, just.
In another instance, in Florida, one half of a kidnapping duo was caught. He refused to reveal the whereabouts of his partner-in-crime. Fearing that the victim would be killed, the police choked their suspect until he told them what they needed. The tortured criminal was later taken downtown and made a confession—one he later, at trial, sought to have suppressed. The state appeal court ruled against this request, but went further, stating that the torture was “understandably motivated by the immediate necessity to find the victim and save his life”. A further appeal to a federal court was met with the same decision.
Neither instance amounts to the thousands threatened by, say, a biological weapon, but most people’s moral intuition favours the police’s actions all the same. The ‘enhanced interrogation’ of known Al-Qaeda or ISIS terrorists whose fellow terrorists are planning further attacks brings us closer to real-life examples of the ticking time-bomb scenario than many are ready to admit.
Indeed, perhaps it is because our moral intuitions are just that—gut feelings rather than cold rationality—that that our responses to torture often vacillate between the pro and the con. The neuroscientist and public thinker Sam Harris has also put forward a case against an absolute prohibition on torture—“in the aftermath of Abu Ghraib, not a comfortable position to have publicly adopted,” he has noted. “[But] while many people have objected, on emotional grounds, to my defence of torture, no one has pointed out a flaw in my argument. [And] I would be sincerely grateful to have my mind changed on this subject.”
“There seems no question that accidentally torturing an innocent man is better than accidentally blowing him and his children to bits.”
Harris argues that the position against the use of torture in rare circumstances is at odds with our willingness to wage modern war in the first place: if we are willing to accept the ‘collateral damage’ that comes with dropping bombs—a method of warfare more or less guaranteed to inflict misery or death on a considerable number of innocents, often knowingly so in advance—why should torture of a terrorist “provoke convulsions of conscience”?
“What,” he asks, “is the difference between pursuing a course of action where we run the risk of inadvertently subjecting some innocent men to torture, and pursuing one in which we will inadvertently kill far greater numbers of innocent men women and children? It seems obvious that the misapplication of torture should be far less troubling to us than collateral damage. There seems no question that accidentally torturing an innocent man is better than accidentally blowing him and his children to bits.” Revulsion felt towards torture because it’s up close and personal is a failure of imagination in considering what it must be like to be bombed.
Harris even proposes his own thought experiment. If some kind of ‘torture pill’ might be devised—one that produced paralysis and a brief, intense spell of the kind of misery that nobody would wish to suffer twice, but which, after what appeared to be a short nap, led to the person who took it waking to give up all he knew—wouldn’t we be inclined to call this pharmaceutical intervention a ‘truth pill’? “Realism,” Harris has added, “is not the point of these thought experiments. The point is that unless your argument rules out torture in idealised cases, you don’t have a categorical argument against torture.”
It’s not an easy thing to hear. We all like to conceive of ourselves as civilised, as keeping back the barbarians, not stooping to their methods. But it would seem that, in exceptional instances, opting for torture would be the right thing to do—morally, practically, albeit reluctantly—in defense of legitimate self-preservation. That may not be intellectually satisfactory, suggesting only how moral issues rarely have neat endings. All the same, it’s probably not a conversation to have next time you’re enjoying a dinner party with friends either.
Illustrations by Rebecca Chew.
This story was originally published in the May issue of Esquire Singapore.