Comments on: Needles Under the Nails

By: FatMixx » When in torture OK?

FatMixx » When in torture OK? — Sun, 03 Apr 2005 06:15:19 +0000

[...] ? filed under: Vote Kieran Healy has an excellent explanation about why torture never is good policy. It’s fascinating to me to [...]

By: Garry Culhane

Garry Culhane — Thu, 17 Mar 2005 19:40:02 +0000

There is a story that Ghandi was asked what he would do if he were in a tiny cell with a Cobra poised to strike and a suitable stick within reach. Would he not pick up the stick and defend himself against the snake? Ghandi is supposed to have said he would break the stick.
When I first read that I thought it was a dubious defense of pacificism. Later I realized it showed that Ghandi was one tough son of a bitch who would sternly push aside the kind of sophomoric idiot who would come up with such a question. He was a serious man who had decided that it was time to drive the British Empire out of India, his way.
He was not going to waste time on scholastic debate. One does not want to get in the way of a man like that. His convictions are his means.
But one might want to notice what a serious man sounds like. It makes Dershowitz sound like a nasty little schoolboy doing unpleasant things to flies. The point is, if you are a democratic person by conviction, then those are your means. Worry about the unthinkable when and if. Or maybe you think Ghandi was a softie?

By: jet

jet — Thu, 17 Mar 2005 17:38:40 +0000

Rob,
You said “However, it does seem plausible that any hypothetical cases in which torture is justified, should they exist, are so rare and so difficult to assess the existence of, that, whether or not they exist, a total legal ban on torture is justified.”
And that was my opinion before I came to the opinion that torture is always wrong because there will always be the chance that an innocent will be tortured, regardless of oversight. Although I think the penalty phase of any trial should take into account if the torturer made a good call on whether to use torture (he got the information to stop the bomb).
Which leaves me where I started. The one case where I felt torture was truly justified had the exact consequences I would now want it to have. The Captain who fired his pistol near the ear of a captured roadside bomber was court marshalled, but given a slap on the wrist since the roadside bomber gave up the location of many bombs after the gunshot.
On a side note, I don’t see how the Constitution fits into the debate about torturing non-US citizens. It is obvious that a US citizen/agent can not torture a US citizen.

By: Crooked Timber » » Eugene Volokh jumps the shark

Crooked Timber » » Eugene Volokh jumps the shark — Thu, 17 Mar 2005 15:39:27 +0000

[...] being honest here. I don’t think it’s unreasonable to suspect that most of the nonsensical defences of torture, invoking ticking bombs and the like, are s [...]

By: Meade’s Maxim » Torture Excuses

Meade’s Maxim » Torture Excuses — Thu, 17 Mar 2005 14:53:03 +0000

[...] bear no relationship to ticking time bombs, with torture beginning weeks after pickup, and realize that you’ve become a moral monster. [...]

By: Rob

Rob — Thu, 17 Mar 2005 11:58:15 +0000

Jet,
describing torture as gratuitious is, I admit, somewhat question-begging. But if you take seriously, as the US constitution does, the right not to incriminate yourself, which follows from a presumption of innocence (the thought being, in both, that the burden of proof rests with the accuser, rather than with the accused) and the right not to be subjected to inhumane or degrading treatment, then torture is necessarily gratuitious, because it aims at violation of the first of these rights by violation of the second. It is like the gouging case, because in both cases, rights are violated: boundaries which ought not to be broken are broken, and broken with the intention of breaking them. Killing someone in genuine self-defence is like, I think, the case where the mountaineer cuts the rope, sending their companion to their death, because otherwise the companion is going to drag them both to their deaths, having fallen or whatever. In neither case is the death intended, whereas in the gouging case and in the torture case, the pain is an intrinsic part of the action.
Notice that I am not saying there are no hypothetical cases where torture might be justified: I’m not taking a position on that. However, it does seem plausible that any hypothetical cases in which torture is justified, should they exist, are so rare and so difficult to assess the existence of, that, whether or not they exist, a total legal ban on torture is justified. This is because, allowing that there are such cases, the plausible cases where torture is justified are so rare and difficult to assess the existence of that it would be extremely dangerous to allow individuals to assess whether or not they existed. Even if we were sure that a particular case of torture was justified, I think we would still be justified in punishing the person concerned because of the disincentive effects it would provide: not punishing them would be condoning torture, which it strikes me would be incredibly dangerous. Anyone who was caught in the genuine moral dilemma that cases of justified torture, should they exist, would provide, would surely appreciate that torture is at best a hideous least worst option, which is almost never justified, and that discouraging it is such a serious moral imperative that their punishment is justified.

By: Mitch

Mitch — Thu, 17 Mar 2005 09:44:27 +0000

H.R. 952, Torture Outsourcing Prevention Act:
Torture is undeniably WRONG and anyone committing it should be punished regardless of the circumstances, that said I must admit that if the only way I could save the lives of those dear to me was to torture the someone I believe I would do so, but I would be willing and expect to face the consequences of my actions whether it be imprisonment or even my own death.

This should not be construed as being the same as killing an enemy in an act of war, for torturing a captive for any reason should be considered as no different from murdering a person while they are bound and gaged, ITS WRONG AND ITS A CRIMINAL ACT.

By: Mitch

Mitch — Thu, 17 Mar 2005 09:42:13 +0000

By: pedro

pedro — Thu, 17 Mar 2005 02:43:16 +0000

Ah, then Jet would find him a most reasonable and sensible fellow, and would patriotically take the ordeal.

By: C.Patel

C.Patel — Wed, 16 Mar 2005 22:26:37 +0000

Ah but what if he absolutely believes you to have knowledge of an impending terrorist attack and only wants to torture the information out of you?

By: jet

jet — Wed, 16 Mar 2005 21:43:04 +0000

Rob,
The pain from torture may be intrinsic to the event, but it is not gratuitous. It would be gratuitous if there was another way to get the information. Killing when you could injure is gratuitous. Gouging when you could restrain is gratuitous. But torturing when you could ask real nicely just doesn’t follow. I still see the taking of another’s life as more immoral than torturing another person. And the only reason that taking of another’s life should be allowed is because the crime you are trying to prevent is so immediate that there is no doubt it would have occured had you not acted. IE, if someone breaks into your house and keeps coming towards you with a knife, he obviously isn’t trying to sell girl scout cookies.

By: Alan Bostick

Alan Bostick — Wed, 16 Mar 2005 21:39:18 +0000

Joel Turnipseed: Thanks for the valuable references. Richard Slotkin is now on my must-read list. It’s always a relief to discover that someone else has already done the heavy lifting that one has been dreading. I wonder if you could unwrap your reference to “the new Hoberman book on Hollywood’s change of temper from 60s to 80s”. Do you mean The Dream Life by Village Voice film critic J. Hoberman, or something else? My googling skills don’t seem to be up to the task of tracking anything down from your description.
Nell Lancaster: Thanks for the referral. I am not, however, Australian; I’m as American as Joe McCarthy and the Ku Klux Klan. I live in Oakland, California.
Jet: I think that the sexual element of torture—not just at Abu Ghurayb or Gitmo, but of torture in general—needs to be brought more into the discussion. Statements like “I’d probably be down with the death penalty for anyone who admits to being sexually stimulated by torture” or “People who find sexual pleasure in torture have a disease and need treatment before they act on that impulse” work to discourage discussion. Who wants to come forward and engage in dialogue with someone whose starting point is that you’re a sick bastard who deserves to die?

By: Rob

Rob — Wed, 16 Mar 2005 20:48:01 +0000

Jet,
I think your case is a little misleading. I agree that the law ought to respond similarly to relevantly similar cases, but I don’t think the cases are relevantly similar, even if we allow that homicide is permissible to save lives in the normal course of events (that’s just a caveat to say, I’m not taking up a position on whether it is or not, because I think it’s probably beside the point whether it is or not). The relevantly similar case would surely be where you inflicted gratiutious pain on someone in order to prevent them taking lives, because homicide and torture are not the same moral wrong. For example, say in the act of restraining someone from killing someone else, I gratiutiously gouged one of their eyes out: I could have pinned their arm behind their back, or something else, but instead I gouged their eye out. I think we would correctly want to prosecute someone for that (at least in an ideal world, where we could easily distinguish between cases where it was gratiutious and where it wasn’t). Yet that seems to be the case closer to torture, because in both the intention is to inflict pain in order to achieve an end, where the pain is not incidental to the pain but intrinsic to it, whereas in the case of a justified homicide to prevent further deaths, presumably if the person killing to prevent death could achieve that end by some other means, they would do so: the death is accidental to the purpose at hand.

By: George

George — Wed, 16 Mar 2005 20:41:34 +0000

Doug K, thanks for responding. That’s a legitimate position to hold: we must never torture, no matter the expected consequences. It may be that the negative ramifications of an act of torture will ultimately outweigh the positive effects, even in those extreme cases where they can be quantified with confidence—which, as we all agree, is rare. But I find phrases like “The answer to your question is no. Simple” to be red flags. It is not simple, and if you think it is, you are not thinking hard enough. Likewise, bi’s statement “the right question is this: ‘how often has torture been shown to produce useful, reliable results?’ Answer this question. It’s not difficult.” By “it’s not difficult,” I’m guessing she means the answer is ‘never’ and the case is closed. Not true. As mentioned, the Israelis frequently must use aggressive interrogation on a time-sensitive basis to stop in-progress acts of terrorism, and they are often successful in doing so.
That said, ginger yellow is precisely right when he (she?) says the following:
“If you’re so certain of your ticking time bomb scenario that you’re willing to torture someone, then you should have faith in a jury reaching the same conclusion. Hell, even if you are guaranteed to be convicted, you should be willing to submit to the law – after all, if saving lives is worth inflicting excruciating pain on someone else, it’s surely worth a little jail time for yourself.”
Torture is and must remain forbidden, outside the bounds of law or social norms—as I had hoped I had expressed in my first post above. But these moral choices are very real. Though thankfully none of us is likely to ever have to make them, to simply absolve yourself of the duty to think throught the potential consequences of your actions is akin to religious fundamentalism.

By: Outside The Beltway

Outside The Beltway — Wed, 16 Mar 2005 20:06:34 +0000

Answering Derschowitz

Harvard Law professor Alan Derschowitz poses the question,

When you torture somebody to death everybody would acknowledge thats torture. But placing a sterilized needle under somebodys fingernails for fifteen minutes, causing excruciating pain …