The Ethics of Torture

I guess I agree with what Shepard Smith is saying in this remarkable exchange(start at 1:40): We are America and we don't allow torture: this is not a right and left thing, it's a right and wrong thing. If there has been torture, those who ordered it should be prosecuted, even if it was the president.

If I sound a little reluctant, it's because I see di a problem here. However, I think we already have a solution to this problem.

I think of it as "the Fail Safe problem." At the end of the book and film of that name, the President of the United States (Henry Fonda in the movie) faces the possibility of the destruction of civilization as we know it. Due to a series of human and comuter errors, the US has dropped a hydrogen bomb on Moscow, destroying it. The Soviets are poised to retaliate with an all-out nuclear attack on the US. After exhausting all available alternatives, the president convinces the Soviets that the bombing was an accident by ordering another bomb to be dropped on Manhattan. The pilot who drops the bomb knows that his own wife and children are below him as he drops it. He then commits suicide. End of story.

My point is that you cannot prejudge for all time what you would or should do to prevent unthinkable horrors. Here the cliche example is very much to the point: Wouldn't we torture a terrorist who knows where a ticking H-bomb is? Sure. I would pull a few fingernails myself.

There is no need to legalize torture -- law or no law, we know it will be used in such unthinkably extreme circumstances, and so do our enemies.

But, you may say, if we don't change the law and allow torture, aren't we ensuring that people who are doing things that, though horrible and perhaps even unjust, are nonetheless necessary, will be punished for trying to protect us?

No, we aren't. If I commit torture and am exposed and prosecuted, I could argue that though I broke the law, nonetheless, due to horrific circumstances, I had a justification or excuse for doing so. I would be arguing that though I broke the letter of the law, I am not guilty of doing so. Even if I were still found culpable, these same arguments can figure as "extenuating circumstances" in sentencing (perhaps resulting in a suspended sentence).

Indeed, if my torture is successful and is known to have prevented the ticking-bomb disaster from ocurring, the public prosecutor would surely not prosecute at all and the government will try to keep my crime a secret.

People who want to legalize torture want the legal system to be flexible and adapt to changing times and circumstances. There is no need to abandon some of the most fundamental values of our system in order to be rationally flexible. Time-honored legal concepts like "justification," "excuse," and "extenuating circumstances" already give the system the flexibility it needs. As they say, "hard cases make bad law."