Why I’d Rather Not Speak About Torture

April 28, 2011

I have long maintained a page on my website where I address various distortions, misunderstandings, and criticisms of my work. I take it to be either a sign of carelessness or masochism on my part that this page is the #1 Google search result for the phrase “response to controversy.”  Surely, I need not have courted quite so much controversy. But there it is.

While most of my work has been devoted to controversial topics, I have taken very few positions that I later regret. There is one, however, and I regret it more with each passing hour: it is my “collateral damage argument” for the use of torture in extreme circumstances.  This argument first appeared in The End of Faith (pp. 192-199), in a section where I compare the ethics of “collateral damage” to the ethics of torture in times of war.  I argued then, and I believe today, that collateral damage is worse than torture across the board.

However, rather than appreciate just how bad I think collateral damage is in ethical terms, many readers mistakenly conclude that I take a cavalier attitude toward the practice of torture. I do not. Nevertheless, I believe that there are extreme situations in which practices like “water-boarding” may not only be ethically justifiable, but ethically necessary—especially where getting information from a known terrorist seems likely to save the lives of thousands (or even millions) of innocent people.  To argue that torture may sometimes be ethically justified is not to argue that it should ever be legal (crimes like trespassing or theft may sometimes be ethical, while we all have an interest in keeping them illegal).

I sincerely regret making this argument. Rational discussion about the ethics of torture has proved impossible in almost every case, and my published views have been the gift to my critics and detractors that just keeps on giving: It seems that every few weeks, someone discovers the relevant pages in The End of Faith, or notices what others have said about them, and publicly attacks me for being “pro-torture.” Journalists regularly steer interviews on any subject in this direction—not so that they can understand my position, or coherently argue against it, but so that readers can be shocked by whatever misleading gloss appears in their final copy. The spectacle of someone not being reflexively and categorically “against torture” seems just too good to pass up.

And so, I am now a bit wiser and can offer a piece of advice to others: not everything worth saying is worth saying oneself. I am sure that the world needs someone to think out loud about the ethics of torture, and to point out the discrepancies in how we weight various harms for which we hold one another morally culpable, but that someone did not need to be me. The subject has done nothing but distract and sicken readers who might have otherwise found my work useful.

The topic of torture surfaced recently in a profile of me published in The New Statesman. The author, Jonathan Derbyshire, concluded his piece with a misleading summary of my views (among other things, he neglected to say that I think torture should be illegal). He later published the raw transcript of our interview, presumably so that I could speak for myself on so inflammatory a topic. Nevertheless, even my unedited remarks proved difficult for many people to understand, as witnessed by the fact that even one of my friends, Andrew Sullivan, felt the need to publicly repudiate them. Thus, I have been goaded to clarify my view on torture once again. I certainly hope it is for the last time.

[What follows is a revised section of the article “Response to Controversy,” referenced above.]

I am not alone in thinking that there are potential circumstances in which the use of torture would be ethically justifiable. Liberal Senator Charles Schumer has publicly stated that most U.S. senators would support torture to find out the location of a ticking time bomb. Such “ticking-bomb” scenarios have been widely criticized as unrealistic. But realism is not the point of such thought experiments. The point is that unless you have an argument that rules out torture in idealized cases, you don’t have a categorical argument against the use of torture. As nuclear and biological terrorism become increasingly possible, it is in everyone’s interest for men and women of goodwill to determine what should be done if a person appears to have operational knowledge of an imminent atrocity (and may even claim to possess such knowledge), but won’t otherwise talk about it.

My argument for the limited use of coercive interrogation (“torture” by another name) is essentially this: if you think it is ever justifiable to drop bombs in an attempt to kill a man like Osama bin Laden (and thereby risk killing and maiming innocent men, women, and children), you should think it may sometimes be justifiable to “water-board” a man like Osama bin Laden (and risk abusing someone who just happens to look like Osama bin Laden). It seems to me that however one compares the practices of “water-boarding” high-level terrorists and dropping bombs, dropping bombs always comes out looking worse in ethical terms.  And yet, most people tacitly accept the practice of modern warfare, while considering it taboo to even speak about the possibility of practicing torture. It is important to point out that my argument for the restricted use of torture does not make travesties like Abu Ghraib look any less sadistic or stupid.  I considered our mistreatment of prisoners at Abu Ghraib to be patently unethical.  I also think it was one of the most damaging blunders to occur in the last century of U.S. foreign policy. Nor have I ever seen the wisdom or necessity of denying proper legal counsel (and access to evidence) to prisoners held at Guantanamo Bay. Indeed, I consider much of what occurred under Bush and Cheney—the routine abuse of ordinary prisoners, the practice of “extraordinary rendition,” etc.—to be a terrible stain upon the conscience of our nation.

Some people believe that, while collateral damage may be worse than torture, these are independent evils, and one problem does not shed any light upon the other. However, they are not independent, in principle. In fact, it is easy to see how information gained through torture might mitigate the risk of collateral damage. If one found oneself in such a situation, with an apparent choice between torturing a known terrorist and bombing civilians, torturing the terrorist should seem like the more ethical option. And yet, most people’s intuitions seem to run the other way. In fact, very few critics of the collateral damage argument even acknowledge how strangely asymmetrical our worries about torture and collateral damage are. A conversation about the ethics of torture can scarcely be had, and yet collateral damage is often reported in the context of a “successful” military operation as though it posed no ethical problem whatsoever. The case of Baitullah Mehsud, killed along with 12 others (including his wife and mother in law), is a recent example: had his wife been water-boarded in order to obtain the relevant intelligence, rather than merely annihilated by a missile, we can be sure that the event would have been met by torrents of outrage.*

It is widely claimed that torture “does not work”—that it produces unreliable information, implicates innocent people, etc. As I argue in The End of Faith, this line of defense does not resolve the underlying ethical dilemma. Clearly, the claim that torture never works, or that it always produces bad information, is false. There are cases in which the mere threat of torture has worked. As I argue in The End of Faith, one can easily imagine situations in which even a very low probability of getting useful information through torture would seem to justify it—the looming threat of nuclear terrorism being the most obvious case. It is decidedly unhelpful that those who claim to know that torture is “always wrong” never seem to envision the circumstances in which good people would be tempted to use it. Critics of my collateral damage argument always ignore the hard case: where the person in custody is known to be involved in terrible acts of violence and where the threat of further atrocities is imminent. If you think such situations never arise, consider what it might be like to capture a high-ranking member of al Qaeda along with several accomplices and their computers. The possibility that such a person might really be “innocent” or that he could “just say anything” to mislead his interrogators begins to seem less of a concern. Such captures bring us closer to a “ticking bomb” scenario than many people are willing to admit.

While I think that torture should remain illegal, it is not clear that having a torture provision in our laws would create as slippery a slope as many people imagine.  We have a capital punishment provision, for instance, but this has not led to our killing prisoners at random because we can’t control ourselves.  While I am strongly opposed to capital punishment, I can readily concede that we are not suffering a total moral chaos in our society because we execute about five people every month.  It is not immediately obvious that a rule about torture could not be applied with equal restraint.

It seems probable, however, that any legal use of torture would have unacceptable consequences. In light of this concern, the best strategy I have heard comes from Mark Bowden in his Atlantic Monthly article, “The Dark Art of Interrogation.” Bowden recommends that we keep torture illegal, and maintain a policy of not torturing anybody for any reason. But our interrogators should know that there are certain circumstances in which it will be ethical to break the law.  Indeed, there are circumstances in which you would have to be a monster not to break the law. If an interrogator finds himself in such a circumstance, and he breaks the law, there will not be much of a will to prosecute him (and interrogators will know this).  If he breaks the law Abu Ghraib-style, he will go to jail for a very long time (and interrogators will know this too).  At the moment, this seems like the most reasonable policy to me, given the realities of our world.

The best case against “ticking-bomb” arguments appears in David Luban’s article, “Liberalism, Torture, and the Ticking Bomb,” published in the Virginia Law Review. (I have posted a PDF here.) Luban relies on a few questionable assumptions, however. And he does not actually provide an ethical argument against torture in the ticking bomb case; he offers a pragmatic argument against our instituting a policy allowing torture in such cases.  There is absolutely nothing in Luban’s argument that rules out the following law:

We will not torture anyone under any circumstances unless we are certain, beyond all reasonable doubt, that the person in our custody has operational knowledge of an imminent act of nuclear terrorism.

It seems to me that unless one can produce an ethical argument against torturing such a person, one does not have an argument against the use of torture in principle.  Of course, my discussion of torture in The End of Faith (and on this page) only addresses the ethics of torture, not the practical difficulties of implementing a policy based on the ethics.

While my remarks on torture span only a few pages in a book devoted to reducing the causes of religious violence, many readers have found my views deeply unsettling.  (For what it’s worth, I do too. It would be much easier to simply be “against torture” across the board and end the discussion.) I have invited readers, both publicly and privately, to produce an ethical argument that takes into account the realities of our world—our daily acceptance of collateral damage, the real possibility of nuclear terrorism, etc.—and yet rules out a practice like “water-boarding” in all conceivable circumstances. No one, to my knowledge, has done this. And yet, most people continue to speak and write as though a knock-down argument against torture in all circumstances is readily available. I consider it to be one of the more dangerous ironies of liberal discourse that merely discussing the possibility of torturing a man like Osama bin Laden provokes more outrage than the maiming and murder of children ever does. Until someone actually points out what is wrong with the “collateral damage argument” presented in The End of Faith. I will continue to believe that its critics are just not thinking clearly about the reality of human suffering.

* It seems, in fact, that many people do not understand what the phrase “collateral damage” signifies, and this leads them to imagine that I have drawn a false analogy. Most assume my analogy fails in the following way: torture is the intentional infliction of guaranteed suffering, while collateral damage is the unintentional imposition of possible suffering (or death). Apples and oranges.

But this isn’t true. We often drop bombs knowing that innocent people will be killed or horribly injured by them. We target buildings in which combatants are hiding, knowing that noncombatants are also in those buildings, or standing too close to escape destruction. And when innocent people are killed or injured—when children are burned over most of their bodies and live to suffer interminable pain and horrible disfigurement—our leaders accept this as the cost of doing business in a time of war. Many people oppose specific wars, of course—like the war in Iraq—but no public figure has been vilified for accepting collateral damage in a war that is deemed just. And yet anyone who would defend the water-boarding a terrorist like Khalid Sheikh Muhammad will reap a whirlwind of public criticism. This makes no moral sense (to me).

Again, which is worse, water-boarding a terrorist or killing/maiming him? Which is worse, water-boarding an innocent person or killing/maiming him?  There are journalists who have volunteered to be water-boarded. Where are the journalists who have volunteered to have a 5000 lb bomb dropped on their homes with their families inside? [added 5/1/11]