Asymmetrical Information

What's missing here is that torture is inherently unreliable. Ask John McCain. You won't get any information much of the time. When you did get information it's highly unreliable, often wrong.

Also, contrary to your example, it's not immediate. You have to break a person. Not just physically, but emotionally. That takes a while. Sometimes they die first.

In addition, no matter how much you torture someone if they BELIEVE in something, they're not going to change their mind. There is a Jihad going on against the US. It's not just that they don't like us, they think we're infidels who are the devil. If they just thought our policies were wrong, that might be different, but it's very hard to torture information out of someone who thinks you're satan. You're just proving them right.

I'm against torture, partly because I wouldn't do it myself (I like that point) and partly because it doesn't work.

Another point is that many people willing to countenance torture assume the government has perfect knowledge of the captive's guilt and that he has the information they seek. These are very questionable assumptions. Many of those guys we're keeping down in Cuba might be low-level al Qaeda with no real information at all, and some might even be innocent men who were in the wrong place at the wrong time.

I'm very sympathetic to Megan's argument, but it's also worth pointing out that even if you might be willing to do something individually, you might still not want the government to have the power to do it. For similar reasons, private people can censor speech, ban guns, etc. on their property, but we don't trust the state with that power.

Kate - I agree with you, torture isn't effective. Additionally, from an operational standpoint, it's a known risk that an operative's capture will lead to a compromise of security, therefore operatives are proactively compartmentalized and kept in the dark.

Case in point, there was a Marine Lt. Colonel that the Iraqi's captured in the PGW -- the Colonel knew of an amphibious invasion into Kuwait but kept his disclosures to name and rank only. The stuff the Iraqis did to him was unmentionable. They wanted to know what the Colonel knew about the amphibious assualt. Yet, as history has shown, the amphibious assault was a fake. The colonel didn't know this so he acted in what he thought was in the best interests in his country. Ironically, his silence reinforced what the Iraqis already suspected -- that the Marines would invade Kuwait from the sea.

The point is that even high ranking officers don't always have all the information -- and I think it would be a mistake to assume that Al-Qaeda is any different merely because it is a smaller, less sophisticated organization than our military.

I'm againt torture because A) its ineffictive and the results are highly unreliable (ex. unreliable info led to the belief that the Hajj would be the time of a dirty bomb exploding in the US). B) Torture is not consistent with the ideology of a moral war that places an emphasis on strategic targets only -- captured enemy noncombatants are not strategic targets. Torturing enemy noncombatants is akin to the fire-bombing of Dresden -- no matter how good it may make you feel to get retribution, its simply immoral. C) If we use torture then we have no legs to stand on when our enemy uses torture. and D) it is simply facist to have a policy that "should happen in dark rooms, at risk to the lives and careers of the men who carry it out, so that the hidden law will only trump the written law when times are truly desperate enough to call for such desperate measures."

Hidden laws may make you feel comfortable with torture, but the minute we start employing the rule of hidden law is the minute we've become Nazi Germany.

YOu said it perfectly for me, Megan.

Anyone who believes torture should be a legitimate government act even in exigent circumstances should read this:

http://nationaljournal.com/taylor.htm

Link from the Volokh Conspiracy.

This really is happening now, and is light years from Jane's hypo -- the torturee knew nothing, and was taken prisoner on absurdly scanty evidence.

Torture should never be legalized, under any circumstances. However, in circumstances when the failure to obtain information would be truly catastrophic (and in which for some reason other, more reliable means such as sodium pentathol and similar drugs won't work), the executive pardon power was created (among other reasons) to spare individuals who stepped over the line for a good cause from the usual consequences for their actions. It's definitely a case of "You'd better succeed."

Jane -

I was disappointed when you said you would stomp them a little bit. That is neither here not there. Would you be willing to go all the way and employ methods that might lead to death of the suspect, to extract information? Stomping don't do it, what about cutting, physical torture, drugs, electro shock.....

If you don't want to draw a line, don't pick up the pen.

Some of the categorical anti-torture positions stated above seem to be based on facts not posed by Jane's hypothetical -- no one is suggesting that "low-level Al-Qaeda operatives" be tortured at Gitmo.

Rather, the issue of torture has come up recently in the news and in Blog World in connection with guys like Khalid Sheikh Mohammed, who is universally described as the "number 3 in command" of the Al-Qaeda organization. In that context, the hypothetical is much more like Jane's -- we know (or are pretty damn sure) that the potential torturee has information that could, if extracted, save innocent lives (e.g. our husbands, wives, sons, daughters or friends).

The question, then, put starkly, is whether that person's life/health has more value than the innocent lives that might be protected by injuring or killing him? And, relatedly, whether the government ought to be making those value determinations at all?

I tend to side with Jane and with Professor Volokh at the Volokh Conspiracy -- I don't want the government to "offically" sanction torture, but it doesn't bother me at all to think that the CIA might not be taking an entirely constitutional approach to getting information from Mr. Mohammed, wherever he may be right now.

Jane, I do appreciate your individualizing your response to torture. I wish more people would do that in their take on taxes, victimless crime, etc.

I would not torture. It's not just a matter of dry utility, of how to best fight crime. It's about the sort of person you are, and that you want to be. Are you willing to be a torturer? In this context it is worth pondering why we have animal-cruelty laws.

Also, your scenario is unrealistic in that you are assuming you know with certainty that the torturee knows something. This allows you to torture in your scenario in the certain knowledge that there are results to get. And that allows you to be more merciless. In the scenario.

In real life, you'd be very unlikely to know what a prisoner knows. (After all, that's what you are after with the torture.) The prisoner will say he knows nothing. He'll only give you real information after you've broken him. But you won't know when that is or how long it will take, if it ever happens.

You work with a paid hireling to deprive him of sleep; he starts to babble out what you take as good information. But you check on it and find out that he's hallucinating.

So. You stomp him. You've broken his leg. He's screaming. He has a wife, a family. He admits he tried to kill your brother, but says there is no larger plot that he knows of. You attach the electrodes to his genitals. You set them on "stun". He screams. You ask more. His story does not change.

Days go by. Every day, you shock him. You start to beat him. You asphixiate him under water, risking his death. He begs for mercy. You clamp his head and drill out his teeth. He screams. He screams. He screams.

You begin to doubt that he actually does know anything. But you don't know. Maybe he does. Maybe if you bite his eyes out he'll talk. Maybe if you rape him with a broom handle, right up the ass, he'll talk. Maybe... what else can you imagine that you'll be willing to do to him? What horrible violations can you dream up that might break him?

How merciless are you? Will you turn yourself into a pitiless, empty animal for the sake of the hypothetical threat to your loved one? Is there anything you are unwilling to do to your fellow man, even if he's guilty as hell?

Would you want to be known by your friends and acquaintainces as a merciless torturer? The sort of person that invents drill-torture?

Me, I'd try the sleep deprivation. I can draw a line there. But when it comes to physical methods, I will not. I'd take my chances. And I would remain the sort of person I think I am. I am good. I am merciful. I'm human. And if that meant that my loved one died, I would surely feel real regret and self-reproach; but I have my principles and that would help to sustain me and to accept my loss.

B.Maher - I think I used several specific reasons for why I'm against torture all of which considered the case of high-ranking captures. Furthermore I think I adequately communicated that torture is unrealiable in any case. How is that categorical denial?

Frankly I'm surprised that Jane, yourself and Volokh (as you suggest) have no problem with "hidden laws." What if our government decided that stop signs weren't going to be enforced on Tuesdays? What if government decided that black people couldn't enter certain bathrooms?

I'm against torture, but if we must do it, at least do it with the support of the law.

The thing of it is torture CAN be effective -- as can the THREAT of torture. It's true that torture won't work on everyone but you don't necessarily know whether it'll work on a particular individual until you try it.

The dilemma Ms. Galt presents is whether it's "moral" to apply heinous means to thwart an imminent threat.

Dunno -- but if I KNEW that this guy had information that I could use to save my child from some dire fate, I'd tie him to a chair, I'd take out my two pound hammer, and I'd take off his shoes.

But we do have the hidden law for traffic, which is why cops don't always write you tickets. If you run a stop sign on a deserted road with a clear sight line because you're driving your wife in labor to the hospital, the cop is probably going to give you a walk, even though there's nothing in the statute that says "Stop signs shall be obeyed unless someone in the car wants to get somewhere fast for a good reason." We leave that to the discretion of the cops, and don't unduly worry that by doing so, we've unleashed anarchy on the roads.

If some terrorist group had my son and there was someone tied to chair in my house who was involved and might know where he was, you're damn right I'd be reaching for my toolbox. At least I'd like to think I would. The only thing that might stop me would be cowardice, not morality - there'd be plenty of time to hate myself once my son was safe. I have trouble believing any father would feel much differently. That doesn't necessarily mean I'm pro-torture though.

If my son was already beyond help and the guy tied to the chair had been involved I still can't see him ever walking out of my house. At the same time, I generally oppose capital punishment, at least in the abstract.

There are benefits to personalizing these types of discussions, but sometimes the emotions involved can just confuse the issue. Yeah, I'd torture someone if it might help my son but that doesn't mean I'd be right to do it. Would I personally torture someone to save someone else's son? That's a lot tougher question to answer.

Yes but if I'm a pedestrian who is trying to cross the intersection while someone is simultaneously trying to get their wife to the hospital, then what do you do?

The point I was trying to make regarding hidden laws is that we citizens rely on a certain amount of predictability and reliability in our legal system. I can cross the street on the correct signal knowing that oncoming traffic is going to stop. Imagine what life would be like if I couldn't make that assumption about something so ordinary?

Creating predictability and reliability is why the Supreme Court has said many times that ordinary citizens are not omniscient practicioners of the law. It is for this reason that we have Miranda and other 6th Amendment protections in the first place.

Cops are not judge and jury -- like it or not, our system of law says that they don't get to decide who gets tortured, for how long, by what method and when.

Jane, what you're suggesting takes us down a long and nasty road that will ultimately led to a destruction of our civil liberties. Is that what you want?

I'm a new reader and it was a delight to read your comments on the matter of torture. This issue is not some ivory tower debate by people who do not have to content with the issues that must be dealt with and the consequences of the failure of intelligence or security to issue adequate warning. It is an issue not for the faint of heart nor those who like their issues wraped in some germ free wrapping. It is messy, and it is vital. One hopes that people will look at it in an intelligent way but I doubt it. Some years back I remember watching a debate about POWs in war. The ivory tower types gave the usual arguments but the best one was from an old crusty veteran who asked if you assault a bunker that has killed hundreds of men and at the last moment the gunner gives up how can you expect a soldier to control his anger? This was the truth, ugly, but what normally occurs in battle. This is why snipers seldom have long lives. I for one would rather do everything possible to save lifes rather to preserve the peace of mind of some law professor who hasn't seen the effects of Sarrin, Tabun, or VX gas. I have seen the Tailiban experiments on dogs, I assure you I would be happy to do whatever was required to spare my friends, neighbors, and countrymen a death of this type than to adhere to some abstract code that means little to the dead and less to the dying.

I was glad to see so many people inveighing against torture. I hope the public discourse does not turn to legitimizing the use of torture by the US. (Has it already? I guess so.) Maybe I'm unusual but I take a lot of pride in the fact that we're an idealistic, democratic country, even if we sometimes fail to live up to our ideals. Institutionalized torture would truly be a contradiction to what we attempt to stand for.

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