Missing the Point on Torture

The political debate over the acceptability of torture and extreme interrogation techniques almost always devolves into a completely irrelevant discussion of hypothetical scenarios and the moral and ethical questions raised by them.

For a classic example of this phenomenon, see this post by Tom Maguire (no offense, Tom). He takes issue with a number of press reports and editorials that praise John McCain for his anti-torture stance in the debate the other night while criticizing his Republican rivals for explicitly (and gleefully) endorsing the use of "enhanced interrogation techniques." Tom points out, correctly, that McCain has on more than one occasion--including in the debate itself--made clear that he thinks torture can be justified in very rare situations.

Tom therefore concludes that--other than doing a better "job of regretting torture rather than seeming to relish it"--McCain's position really isn't any different than his opponents; he's "a guy who would endorse torture in extreme scenarios to save lives."

As an initial matter, I would point out that discussing torture in an appropriately somber tone--as opposed to pandering to people's worst instincts in order to win applause--is no small difference. Even if tone were the only difference between McCain and his opponents on this issue, it would still be a significant difference. Watching Giuliani, Romney, and the second-tier wannabes trip over each other to endorse extreme interrogation techniques the other night was more than a little unsettling.

But Tom's analysis of the candidates' positions is wrong on a substantive level as well. There's an enormous difference between McCain's stated position and those of his opponents. McCain believes in a categorical legal prohibition against torture and "enhanced interrogation techniques." His opponents don't, or at least I haven't heard them say so. That makes all the difference in the world.

What Tom gets tripped up on are McCain's answers to two very different questions. The first is the important one: what should our policy on torture be, i.e., what should the law say about when torture may be used? To this question, McCain's answer is simple: torture should be categorically prohibited.

The second, far less relevant question is this: are there certain hypothetical scenarios under which the use of torture can be morally justified? If you construct the right scenario (nuclear bomb about to go off, suspect knows the target, etc.) just about anyone will answer yes to this question. But that's not at all surprising or informative. After all, it's possible to construct a hypothetical scenario where you'd be morally justified in shooting a little girl in the head (you're in a cave running out of air, there are four other younger children, they'll all die unless you off yourself and the oldest kid, etc.). The bottomline is that all of us are capable of simple utilitarian moral reasoning. If you are presented with a choice between something very bad and something even worse, the moral logic is pretty clear.

But this is all an exercise in irrelevance because that's not how rational people make policy decisions. Just because you can construct a hypothetical scenario were shooting a girl in the head is the "right" thing to do, that doesn't mean that we should do away with the legal prohibition against murder. When it comes to acts that are sufficiently bad--such as murder and torture--you need categorical rules.

The so-called "ticking bomb scenario" is simple-minded nonsense. It assumes two things that never happen in real life: 1) that you know for certain that a bomb is about to be detonated, and 2) that you're positive the person you have in custody has information that will allow you to stop that bomb from going off. I'm fairly certain that in the entire history of mankind, that scenario has never yet presented itself. Moreover, even if it did, the odds are slim, at best, that the suspect would divulge the necessary information under duress (as opposed to simply giving you disinformation).

As McCain and others have pointed out, if a sufficiently dire situation presents itself, those officials who would contemplate the use of torture need to do so with the knowledge that it is a practice so disgusting and heinous that we have seen fit as a society to ban it categorically. If they are to engage in torture, they need to know it is illegal and that they are likely to be punished if they are wrong. Then and only then can we have any hope that our soldiers and intelligence officials will be sufficiently judicious in their use of this horrible practice.

In a true ticking bomb scenario (which I'm convinced is like saying "when you meet a real unicorn"), people will do what they think they have to do, regardless of what the law says. And in that kind of extraordinary situation, no one would be prosecuted for resorting to extreme, even illegal tactics.

But you can't let highly unlikely hypothetical scenarios dictate policy. Regardless of whether there are conceivable situations where torture could be justified, it has to remain illegal. As Charles Krulak and Joseph Hoar, both former military commanders, wrote in the Washington Post the other day:

As has happened with every other nation that has tried to engage in a little bit of torture-- only for the toughest cases, only when nothing else works--the abuse spread like wildfire, and every captured prisoner became the key to defusing a potential ticking time bomb.

I agree with Tom about one thing. McCain does get a little too much credit for his stance on this subject. Last year McCain used his personal history and his reputation as a crusader against torture to sell the public on the final version of the Military Commissions Act, which was a truly disgraceful piece of legislation, one that subverted many of the values McCain supposedly holds dear. That said, on the stage the other night, there was a world of difference between McCain and his opponents on this particular issue.