Reopening the Torture Debate

[chezlaw]

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But the system needs to have in place some sort of mechanism for invalidating that very law in cases like the one set forth by David

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So what's wrong with jury nullification as that mechanism? Pretending that a law can be written perfectly and to cover all situations is naive, and making people afraid to do what they feel they clearly must, and what vast chunks of the population feel that they must, is to put the actual words of the law above the reason that they were written.
Laws are written in an attempt to define protection from aggression of others (well they should be imo), finding a situation where a law is poorly written should lead to the immediate dismissal of the law in that situation.

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Letting it be known that you even know about jury nullification is a good way to not be on a jury.

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and this is a defect in the legal system that should be corrected not pandered to.

chez

[ChrisV]

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A serial killer who buries his victims alive in a coffin is captured shortly after his latest victim goes missing. He ADMITS he took her and buried her. She is still certainly alive and will be for a few more hours. He REFUSES to divulge her whereabouts. There is a horrible torture technique that ALMOST ALWAYS gets the information required. Using that technique, or torture in general, is against the law. Should it be used anyway?

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Yes. And no to changing the laws.

This scenario is very unrealistic, though. For instance, most people who have information we need don't helpfully tell us that. And whether or not we know they have the information, we have no way to tell whether they have given us false information or not. In the event that the serial killer tells us to dig in the wrong spot, for instance, the victim will likely die before we work out if he was lying.

Being able to be sure that information we have is legitimate is a big deal, which is why real-life military interrogators prefer non-coercive techniques. These yield lower volumes of information, but it is very likely to be good info. Torture gets bucketloads of information, much of it useless or worse than useless.

[Knockwurst]

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I hate this scenario because it is really a complete fiction. Ostensibly, it is framed to get at whether there is anything intrinsically off-limits in torture or whether objections are based in generic moral or ethical concerns. It does this by presenting a slam-dunk scenario: a hideous crime unfolding in real-time, a fool-proof technique that can be applied to an appropriate subject who is in possession of an unambiguous piece of information that once obtained almost immediately rectifies the situation. If this is indeed what "torture" is, I don't think I have a problem with it.

But this scenario does not exemplify torture. There is no ticking time bomb scenario, no fool-proof, instantly available, friction-free technique, no reliable pre-torture intelligence that says this is definitely the guy who knows the exact, unambiguous factoid that will save the day, no unimpeachable surrogate (read Jack Bauer) whose motives are beyond reproach.

The foregoing is a red herring; it takes the blood out of the problem and in flattering us that we've considered the true nature of the problem, salves our consciences while simultaneously allowing us to congratulate ourselves for being willing to deal with the harsh realities of the world in which we live.

Torture is institutionalized brutality that requires the mass production of brutes to administer, execute and manage it; a nation of brutes. Historically and humanly, there is no way around that. You cannot just turn it on like some kind of flashlight.

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Everyone should be required to read Hoi Polloi's response before posting in this thread. His response is one of the most well-reasoned, most eloquently expressed that I have read on the debate.

Your example, however, is a little off the mark. Because the question is to what extent do we allow for the brutalization of someone who is culpable (ie. the serial killer or the terrorist), not the ones who have no culpability (babies).

David's example highlights perhaps one of the biggest problems with sanctioning torture. With his example, we are no longer talking about issues of national security or wide spread destruction, we are talking about one person on a local level. Thus, the decision to torture is no longer something decided at the highest levels, but is subject to all the arbitrariness of a local government official making the decision. Leaving these questions to each locality would necessarily lead to uneven application as you allowed these decisions to be subject to the whims and capriciousness of local government officials.

But even if you allowed such decisions only at the highest level of government for matters of the most pressing national security or threats to that government, then you have to accept that torture is justified whenever a government feels as if its existence is threatened. You would have to accept the torture of students at Tianamen (sp?) Square, where the Chinese Government must have certainly felt like its existence was threatened, or the torture during Saddam's own murderous regime or Castro's, or even the torture of leaders of protest movements in the United States in the 60's and 70's. Once you have accepted and legalized torture for your own government, you lose the right to protest and criticize it when other governments do it.

[Taraz]

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I hate this scenario because it is really a complete fiction. Ostensibly, it is framed to get at whether there is anything intrinsically off-limits in torture or whether objections are based in generic moral or ethical concerns. It does this by presenting a slam-dunk scenario: a hideous crime unfolding in real-time, a fool-proof technique that can be applied to an appropriate subject who is in possession of an unambiguous piece of information that once obtained almost immediately rectifies the situation. If this is indeed what "torture" is, I don't think I have a problem with it.

But this scenario does not exemplify torture. There is no ticking time bomb scenario, no fool-proof, instantly available, friction-free technique, no reliable pre-torture intelligence that says this is definitely the guy who knows the exact, unambiguous factoid that will save the day, no unimpeachable surrogate (read Jack Bauer) whose motives are beyond reproach.

The foregoing is a red herring; it takes the blood out of the problem and in flattering us that we've considered the true nature of the problem, salves our consciences while simultaneously allowing us to congratulate ourselves for being willing to deal with the harsh realities of the world in which we live.

Torture is institutionalized brutality that requires the mass production of brutes to administer, execute and manage it; a nation of brutes. Historically and humanly, there is no way around that. You cannot just turn it on like some kind of flashlight.

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Everyone should be required to read Hoi Polloi's response before posting in this thread. His response is one of the most well-reasoned, most eloquently expressed that I have read on the debate.

Your example, however, is a little off the mark. Because the question is to what extent do we allow for the brutalization of someone who is culpable (ie. the serial killer or the terrorist), not the ones who have no culpability (babies).

David's example highlights perhaps one of the biggest problems with sanctioning torture. With his example, we are no longer talking about issues of national security or wide spread destruction, we are talking about one person on a local level. Thus, the decision to torture is no longer something decided at the highest levels, but is subject to all the arbitrariness of a local government official making the decision. Leaving these questions to each locality would necessarily lead to uneven application as you allowed these decisions to be subject to the whims and capriciousness of local government officials.

But even if you allowed such decisions only at the highest level of government for matters of the most pressing national security or threats to that government, then you have to accept that torture is justified whenever a government feels as if its existence is threatened. You would have to accept the torture of students at Tianamen (sp?) Square, where the Chinese Government must have certainly felt like its existence was threatened, or the torture during Saddam's own murderous regime or Castro's, or even the torture of leaders of protest movements in the United States in the 60's and 70's. Once you have accepted and legalized torture for your own government, you lose the right to protest and criticize it when other governments do it.

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I wish everyone would read this. Nicely said.