Pragmatic approaches to torture

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The balance of liberties

Many countries that are publicly opposed to torture still, in fact, use torture:

In recent years, there have been public reports of torture in more than 100 of the 140 nations that have ratified the Convention against Torture - This figure is based on reports on human rights practices produced by both Amnesty International and the United States Department of State.Oona A. Hathaway, Associate Professor of Law, Yale Law School

Some people now argue that the phenomenon of Islamic terrorism is so grave that there has to be a reconsideration of the balance of liberties.

Previously, according to this view, the individual had to be protected against governments but now the individual ability to wage war on societies is so great that individual liberties may have to be restricted.

Furthermore, this argument goes, the legal codes banning torture were written before the rise of terrorism, and so those rules may be out of date and don't apply to the new realities.

Therefore, it's argued, it is necessary to permit some forms of treatment that are arguably cruel in order to combat terrorism.

A 'torture warrant' could be issued like an arrest warrant, some solutions propose ©

The pragmatic approach

If we accept this point of view then a pragmatic approach to the ethics of torture suggests that it may be useful to move away from arguing about whether torture is or is not unethical, and move towards working out the best way to minimise the harm done by torture.

If the harm done by torture is to be minimised then torture itself needs to be removed from secret dungeons and brought out into the open.

Two ways of making people willing to acknowledge that torture does take place might be:

• to accept that although torture is wrong and illegal, under some circumstances there is no need to punish those involved in torturing
• to accept torture in certain circumstances and regulate it by law

One solution is to remove punishment for torture in some circumstances, by permitting 'official disobedience' in those cases. The thinking goes like this:

• torture is always wrong, and it should always be illegal
  • those who torture put themselves at risk of legal punishment
  • but there may be cases where they can show good reasons why torture was necessary;
  • if a court agrees with them then they may either be acquitted of any crime (presumably because they didn't have a 'guilty mind')
  • or, convicted and then pardoned
• but note that
  • these cases would only be where it was necessary to prevent some catastrophic event, and not where it was to obtain information about a crime that had already happened
  • these cases would have to be very rare in order not to bring the system into disrepute

Regulating torture

Another possibility is to regulate torture by the use of so-called 'torture warrants' on the grounds that forcing torture into the open would reduce its use and particularly its misuse. The thinking goes like this:

• torture is always wrong except where permission is obtained in advance (and perhaps in public) from a court of law
  • this could be rather similar (although more difficult) to obtaining a search warrant
• regulating torture officially would guarantee accountability, record-keeping, standards, and limitations.

The argument for this is that if the authorities can never legally torture a person, they may do so illegally.

Permitting state officials to apply for a 'torture warrant' does at least bring the whole thing into the open and allow for some control over what is going to happen anyway.

...better to legitimate and control a specific practice that will occur, than to legitimate a general practice of tolerating extra-legal actions under the table of scrutiny and beneath the radar screen of accountability.Alan Dershowitz, The Torture Warrant: A Response to Professor Strauss, New York Law School Law Review, 2004

It's arguable that both these approaches to torture are likely to impose serious ethical strains on any legal system that has to implement them, by weakening the general principle that torture is always wrong.