Contemplating Torture

The act of torture has been on the minds of Americans since the case of Lynndie England was in the spotlight. Several years later the role of torture tactics in maintaining the safety of Americans is still a hotly debated topic. Below, we have excerpted the introduction from Torture: A Collection edited by Sanford Levinson. In this book contributors wrestle with the ramifications of our choices on either side of the issue. Levinson’s introduction reminds us why this is an issue we cannot afford to ignore.

An Introduction

Why should one take valuable time and expend equally valuable
intellectual and emotional energy thinking about torture? Not only is the subject grim, but it is also the case, as almost all of the following essays point out, that torture is unequivocally and absolutely forbidden by the law of civilized nations (including the United States). Remarkable proof of sorts of this universal condemnation is provided by a rather unlikely source, an Argentinian torturer who said, even as he defended his participation in Argentina’s “Dirty War,” that “[t]he day we stop condemning torture— although we tortured—the day we become insensitive to mothers who lose their guerilla sons—although they are guerillas—is the day we stop being human beings.”

Such abhorrence of torture is at the heart of the defense the United States and its supporters offered most strongly of Iraq and the deposing of Saddam Hussein—especially following the failure to find any weapons of mass destruction or otherwise substantiate any plausible threat posed by Iraq to American national security. Even opponents of the Iraq war (like myself) are reluctant to say that it would have been “better” had Saddam Hussein in effect been left free to continue torturing his enemies, a likely result of a failure to resort to war.

That torture should be universally condemned is not just the belief of political theorists or philosophers. The principle is written into some of the most basic documents of international law, including the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which entered into force in 1987 and has since been ratified by 130 countries (excerpts of the Convention appear on pages 40‒42). A key article of the Convention, accepted by the United States Senate when ratifying it in behalf of the United States, specified that “[n]o exceptional circumstances whatsoever [emphasis added], whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” The word “whatsoever” is powerful indeed. Every constitutional lawyer is aware that the assertion of “compelling state interests” often suffices to limit, say, the reach of the First Amendment and its proclamation that Congress “shall make no law” abridging freedom of speech or press. Yet the Convention makes it as clear as language can possibly do that no interest, however “compelling,” will avail a government that tries to assert the “necessity” of torturing a hapless suspect. The state simply cannot do it, period, at least if one takes the words of the Convention seriously.

So what, a reader may well ask, is there to think about or contemplate? If truth is beauty and beauty truth, then it is equally obvious that torture is both ugly and evil, and “That is all you know and all you need to know” to realize that it is indeed absolutely beyond the pale for any nation that deems itself civilized. To be sure, some of the contributors to this book would unequivocally endorse this message, especially Ariel Dorfman, who, in his eloquent and moving foreword, and elsewhere, speaks from the depths of his own experience with the vicious regime of General Pinochet in Chile. It is no small matter to disagree with Dorfman or with Elaine Scarry, whose book The Body in Pain, written two decades ago, is perhaps the canonical examination of what it is that makes torture the epitome of evil. This being acknowledged, it is important to emphasize at the outset that the essays that follow, though joined together in the belief that torture is indeed evil, nonetheless are part of an increasingly important debate over the possibility that torture, at least in some carefully specified circumstances, might be a “lesser evil” than some other “greater evil” that menaces society. At that point, so the argument goes, it is indeed necessary to “contemplate” the possibility of torture in all senses of that word….

As a matter of political fact, not a single major American political figure has engaged in significant criticism of such policies. Most, no doubt, would agree with the comments of Senator John D. Rockefeller IV, the ranking Democratic member of the Senate Intelligence Committee, following the capture in Pakistan of a high-ranking official of al-Qaeda. Referring to the possibility of turning the official over to a more torture-accepting ally, Rockefeller said, “I wouldn’t rule it out. I wouldn’t take anything off the table where he is concerned, because this is the man who has killed hundreds and hundreds of Americans over the past ten years.’”

Judge Richard Posner writes in his own contribution to this book that “only the most doctrinaire civil libertarians (not that there aren’t plenty of them) deny that if the stakes are high enough, torture is permissible. No one who doubts that should be in a position of responsibility,” and he criticizes Dorfman’s absolute rejection of torture in his foreword as not only “overwrought in tone but irresponsible in content.” No one should believe that Posner is unaware of the awfulness of torture or of the duty of judges to protect people against being tortured. Indeed, he had earlier ruled, with regard to allegations of torture made against the Chicago Police Department, that “even a murderer has a right to be free from torture.” And he takes Alan Dershowitz to task, with regard to his proposal for “torture warrants” that would legitimate selected instances of torture, for potentially contributing to the overuse of torture by normalizing its use. Yet Posner, in the end, would presumably agree with an American official, described as having supervisory responsibility over suspected terrorists captured in Afghanistan, who was quoted as saying: “If you don’t violate someone’s human rights some of the time, you probably aren’t doing your job.”…

It turns out to be surprisingly hard to avoid granting some element of “legitimacy” to torture, unless one resolutely believes, in the face of all the evidence, that any and all known events of torture will be prosecuted with significant severity under a doctrine of what lawyers call “strict liability,” that is, limiting the legal issue to whether the alleged activity occurred at all, accepting no possible arguments by the defendant that it was justifiable or even excusable. As illustrated by a number of the articles—and by Justice Barak’s opinion for the Israeli Supreme Court—few theorists, and no legal systems, have endorsed such strict liability. Most telling, in a way, is that even Professor Shue, who insists that all acts of “torture ought to remain illegal,” nonetheless added immediately that “anyone who sincerely believes such an act to be the least available evil” should be

placed in the position of needing to justify his or her act morally in order to defend himself or herself legally. . . .Anyone who thinks an act of torture is justified should have no alternative but to convince a group of peers in a public trial that all necessary conditions for a morally permissible act were indeed satisfied. . . . If the situation approximates those in the imaginary examples in which torture seems possible to justify, a judge can surely be expected to suspend the sentence. (Emphasis added)…

Conclusion: In Our Name

It is vitally important that we discuss what is being done in our name. As the Economist has written, discussion in the United States has been all too “desultory.” It is, perhaps, a dreadful play on words to describe torture as too painful to think about. Yet it is of extraordinary importance to defining who we are as a people and how seriously we take our most solemn commitments. Perhaps law cannot speak fully during time of war; with regard to torture, though, all that law needs to do is whisper, given the remarkably categorical ban on torture that it contains.

There is a special reason for the United States, among all countries, to choose adherence to the no-torture “taboo” (and to behave as if it really means it, which would mean, among other things, the end of “rendering” suspects to torture-friendly countries). One might well believe in a “contagion affect.” If the United States is widely believed to accept torture as a proper means of fighting the war against terrorism, then why should any other country refrain? The United States is, for better and, most definitely, for worse, the “new Rome,” the giant colossus bestriding the world and claiming, as well, to speak in behalf of good against evil. Part of the responsibility attached to being such a colossus may be the need to accept certain harms that lesser countries need not accept. Our very size and power may require that we limit our responses in a way that might not be true of smaller countries more “existentially” threatened by their enemies than the United States has yet been.

This is a very powerful case, and much in me wishes simply to endorse it without further ado. At the very least, I strongly agree that the United States must be willing to bear significant costs—greater than many other countries—before it accepts the possibility of torture. “Catastrophe” must be taken seriously as a limiting condition, rather than as a rhetorical term to be evoked whenever something appalling happens.

Still, we must be aware that condemning torture is only the beginning of the necessary conversation, at least so long as most of us end up endorsing “vigorous questioning short of torture.” We must be as attentive, intellectually and emotionally, to “inhuman and degrading” acts as to “torture,” lest we fall victim to accepting anything “short of torture” as in fact fully acceptable, morally even if not legally. In any event, anyone who accepts the necessity of line-drawing—and that must mean anyone who thinks seriously about this topic—must be willing to defend quite awful conduct that comes right up to the line. There is no way to avoid the moral difficulties generated by the possibility of torture. We are staring into an abyss, and no one can escape the necessity of a response.

Want to read more by Sanford Levinson? Check out his Top 10 Reasons Our Constitution is Undemocratic blog post or the book Our Undemocratic Constitution.