Wednesday, January 05, 2005

Volokh conspiracy debates torture

Volokh conspiracy debates torture

I find this quite compelling

I should say that there are many powerful criticisms of torture that can be made; but too often I hear arguments that simply run more or less as follows: "If we start using torture, we lose any possible claim to the moral high ground." "Once we start using torture, are we any better than al Qaeda?" "When fighting monsters, we must never become monsters ourselves."

It seems to me that this sort of argument is ultimately deeply unpersuasive, because it relies too much on moral abstractions that sound appealing but simply do not confront the powerful realist counterarguments. Moral high grounds, for instance, are well and good, and all else being equal of course we'd like to have them. But lots of very sensible and decent people argue that sometimes we need to sacrifice the moral high ground in order to, well, save the lives of thousands of people (or more) -- and also that a moral high ground that strips us of the power to save these lives isn't so moral after all. Simple appeals to "keeping the moral high ground" just don't effectively respond to this important argument.

Likewise, the argument that "Once we start using torture, are we any better than al Qaeda?" strikes me as fundamentally misplaced. You bet we'd be better than al Qaeda; while means are important, ends are important, too.

But then he moves on to the "slippery slope argument" an argument he seems to WANT to concede in order to remain indecisive even though the argument against it is rather similar

example of the slippery slope... Once torture is legitimized in principle to save thousands, it becomes much easier to urge it to save one important person, and then of course we must be able to use it to save one ordinary person, and then how about using it to break child pornography rings or catch rapists.

The problem however is that if extreme action was required almost any person would accept torture as legitimate and it would indeed happen and everyone knows it (we have seen the movies!). So we are on that slippery slope already.

Worse yet we know how the slippery slope argument can be used in many ways to justify anything let your imagination go wild with potential examples a relevant one might be "if you start giving criminals rights it is a slippery slope until they have full rights and the police are completely unable to do anything about them."

Policeman make similar decisions when they decide to shoot an offender to prevent a murder (for example). In the same way an agent might feel justified to torture a terrorist.

I see many places one can stop the slide down the slippery slope for example by having the same sort of investigations that policemen face after a fatal police shooting.

Many people also claim torture is not effective. Well it is reasonable to assume that it will be effective in some situations and less so in others and some methods will be effective and others not depending on the situation. If one is indeed desperate (e.g. hunting a nuke) one will be willing to take those chances. Besides it is fairly inconceivable that it would be totally ineffective - it doesn’t always get the right answer but it does enough times to make it useable.

As Volokh notes once could destroy a country's faith in the law if one prosecuted a person for saving the country from destruction. Having said that if it gets used too often it may destroy the people's confidence that it will not be used on them personally.

A big problem it seems to me is that information acquired by torture is usually required prior to a trial (i.e. there is no time) so one will have to torture potentially innocent people (lets say a person on the battle field but not a combatant or a combatant but not a "terrorist" etc...

I am also mildly surprised that people seem to see permanent incarceration and death as preferable to torture. It seems a rather arbitrary classification. The shooting of a citizen by the police or the torture of a suspect or the life long imprisonment of a person or the death sentence all of which I see as almost on a par with each other (in themselves ignoring the circumstances).

Now I probably start to sound like a proponent of torture. But just because I dont think the arguments against it are very strong does not mean I suggest we just rush out an legalize it. Like with any law one needs to work out exactly how it would be managed. If you are going to legalize something that you find abhorent one must be VERY clear exactly when it can be used and when it cannot, then make it difficult to change (ie don’t put it in the hands of the police leave it in the hands of parliment – or a constitution). Just making torture legal would be similar to making the shooting of suspects legal.

The requirement to front op to a tribunal of sorts with the reasons for the use of torture, the methods used and so forth could well provide the accountability required. I one only wants the method to be used in saving the lives of thousands then make the proceedure of reporting the event arduous andvery public - if you want it to beused more often make it less arduous.


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