Not Quite Against Torture

Little Johnny lifted his neighbor’s motorized tricycle. Pushed it home while no one was looking. He was caught before he could get any joy out of it. When confronted about the theft by his father, the boy declared that it didn’t work anyway. “You see”, dad says, “that’s why you shouldn’t steal!”

The wisdom encompassed in this fatherly advice is currently on display in the debate over torture. Many critics of torture are pointing to its “efficacy problem”. It doesn’t work. Presumably, then, if it did work its use might possibly be justified, or at least something worth arguing.

Then what are we against? Torture itself, or torture in that it demonstrates a lack of efficacy? I’ll leave it to the legal scholars but my guess is that, in all the domestic and international laws and conventions against torture, the prohibition is based on the act itself without regard to its consequences.

In a debate, there are weak strategies and strong strategies. The weak strategy is to look for the easiest point of attack, that of going after the opposition’s weakest debating point. The strong strategy is to attack the opposition’s strongest argument, and show it to be lacking.

Defenders of torture claim that it yields useful information that could not be had by other means. The usefulness of the information is said to be of paramount importance.

It’s a weak strategy when torture critics, lacking the strength of their own conviction, argue against the premise that torture can be useful. Arguing that torture is not useful normalizes the act itself, in the same way that Johnny’s father normalized theft.

The strong strategy for torture critics would be to grant the premise to the other side. Of course torture “works” in any reasonable sense of the word. It produces, on average, the desired effect with a probability greater than zero and less than 100%. That’s why it’s used. Enlightened people are not against it because of its uselessness (or because it may be “misused”) and should not fear facing this.

Torturers have the weaker side of the argument when they say it’s worth torturing someone if it could stave off something worse. We can call this ‘trading certainty for uncertainty’ and I don’t know the extent to which this is frowned upon in the legal tradition, but philosophically I regard it as a trivial idea, easily disposed of.

The only reason this particular torture argument even exists is that the wrong country is involved in it. Should this be happening in the country of a designated enemy, we would be quick to recognize it as an avoidance of state responsibility to hold to international norms and respect the law.

When it comes to prosecuting torture (naturally involving our highest officials), we’re told to look forward, not backward. This is the sentiment of the President, and is somberly echoed throughout the corridors of our institutions and the corporate press. Yet all crimes are in the past. Does this mean a jettisoning of all law enforcement, which cannot prosecute crimes until after they occur?

Perhaps we should say it. We are not a nation of laws. We are a nation that uses law as a tool of the state, and those that act in accordance with the state are clearly above that law.