Free Markets, Free People


I have to admit to some surprise in seeing Michael’s post on torture below.  QandO has been pretty much opposed to the use of torture, and we’ve taken some heat for it every time the subject has come up.  But, once you open up a libertarian blog to others to write for it, and tell them to feel free to write their own opinions without prejudice or favor, then,  before you know it, they go off getting ideas of their own, disagreeing with you, and generally acting with an outrageous sense of independence.

What’re you gonna do?

I understand the attraction of torture, both on utilitarian grounds, and in terms of what I will call “emotional reciprocity”, so I won’t re-cover Michael’s arguments, tendered, as they are, more inquisitively than asseveratively.

When I speak of “torture”, I want to be sure that we all have the same thing in mind when I use the word.  So I will define it here as the intentional application of physical pain, accompanied by the possibility of permanent injury, scarring, derangement, or death.  This will, I think, encompass the entire spectrum pf physical discomfort comfort from beatings to anything else more severe.  I specifically reject a definition of torture that includes psychological pressure, such as putting a particularly nasty-looking beetle in the cell of a prisoner who’s afraid of bugs.  I also reject questioning methods as sleep deprivation for a couple of days, or discomfort from keeping the air conditioning too low as torture.  These things might be unpleasant, but they are not physically or mentally harmful in any significant sense.

It’s possible to construct any number of scenarios in which torture is acceptable–perhaps even moral.  But that doesn’t negate the general rule that torture is, in fact, wrong.To continue, I would then proceed to the question, “Is torture always wrong?”  Well, that’s a silly formulation of the question.  In every human action, context matters.  I think there is general agreement that lying is generally wrong, yet if a terrified woman approaches us and pleads for us to hide her from a crazed stalker who intends to kill her, I think there is also general agreement that if the stalker subsequently approaches us, we would have a positive moral duty to lie to the stalker and deny any knowledge of her whereabouts.  There might also be general agreement that lying has a social purpose at times, in the sense that the answer to the question “Does this dress make me look fat?” is pretty much always, “No.”

In light of the above, it’s possible, then, to construct any number of scenarios in which torture is acceptable–perhaps even moral.  But that doesn’t negate the general rule that torture is, in fact, wrong, in the widest range of circumstances.  If we actually believe in all that stuff about “inalienable rights”, then certainly the right not to have hot needles shoved under our nails is one of them.

Beyond that, however, we enter a terrifically complicated area, when we begin to discuss giving the government the power to have recourse to torture as a matter of policy.  As a practical matter, it is nearly impossible to construct a system in which any official sanction to torture will not inevitably spiral out of control.  Once a set of rules is in place–any set of rules–there will inevitably be torture imposed on anyone on whom an official wishes to impose it.  Officials will ensure that the rules will apply to the persons they wish to torture.  Sure, the guy may look like an innocent Kabul taxi driver, but there will always be an official who “knows” better, and who will ensure that all the proper boxes are checked before the flensing knives are brought out.

We have elaborate rules, for instance, covering the issuance of search warrants, and severe criminal and civil sanctions for their abuse, yet, oddly enough, police agencies fairly routinely deliver no-knock drug warrants on innocent homeowners, which, not infrequently, result in homeowners or policemen getting shot.  Or in the case of 90 year-old Kathryn Johnson in Atlanta several months ago, police just ignore those rules, and seek to provide creative ex post facto justifications.  In that case, of course, we learned that such actions were not at all uncommon in portions of the Atlanta PD.

It is nearly impossible to construct a system in which any official sanction to torture will not inevitably spiral out of control.Providing legal sanction to use torture invites similar overzealousness on the part of officials.  Moreover, if the government can point to some cases of torture’s utility, the pressure to increase the range of acceptable subjects will inevitably increase–just as the drug war has increased the incidence of no-knock warrants being issued to “take down” non-violent drug offenders.  And, frankly, we haven’t done a very good job of guarding the slippery slope in these and similar areas of government activity.

That doesn’t make me sanguine about giving the government the legal sanction to engage in torture, especially in an environment where heathen foreigners will be on the receiving end of it, and their redress in case of mistakes are…limited.  That seems to me to have all the element necessary for an unconscionable abuse of power.

Now, let’s look at the question of whether torture works.  That answer to that is, yes, but not reliably.  There are a number of celebrated cases in World War II where French or Yugoslav partisans were captured by the Germans, turned over to the Gestapo, and essentially tortured to death without telling the Germans anything.  We also have, conversely, literally thousands of “confessions” of witchcraft during the Inquisition, extracted under torture.

What does that tell us?  Well, nothing really that we didn’t already know, which is that if you wish to get a suspect to talk, 220 volts to the genitals will probably work better than a medium-rare steak au poivre with shallots, and a robust glass of Côte de Nuits.

Whether the subject can be relied upon to tell you the truth, or just what he thinks you want to hear, is more problematic.  Torture can work–by which I mean you can receive reliable information from it– through the following iterative process:

1) The subject can be induced to talk through physical pain.  You can eventually get someone to tell you something, if enough torture is applied.  To ensure that something is useful,

2) You must be able to verify the subject’s information in whole, and provide…correction if any part of the subject’s statement appears to be untrue.

You must be able to repeat the above steps until the subject is convinced of your ability to verify his statements and punish evasions or subterfuges.  This can, needless to say, become an elaborate process.  If you can’t go through the process, then you don’t really know if you’re getting reliable information from it, or if the subject is shining you on to obtain relief.  Perhaps he’s telling you the truth.  Perhaps he’s just getting you to look askance at an innocent taxi driver in Kabul.

Michael asked:

Moreover, if it really is ineffectual, why does it continue to happen? Clearly, somebody somewhere is getting results.

Two things come to mind.

First, the vast majority of torture use, both historically, and in the modern world among those regimes that use it, is directed to obtaining confessions of guilt from criminal suspects.  It comes as no surprise that it’s highly effective at obtaining them.  Again, I refer to the Inquisition, where the possibility of death at some unspecified future date became more attractive than than the prospect of a continuance on the rack in the present case.

Second, as I wrote previously, torture does provide more information than would be obtained by abstaining from it.  One wonders, however, how much of that information is actually reliable, as opposed to how much of that information is beleived to be reliable by officials. Or simply politically convenient.  Those two latter  things may not, in fact, be the same as the former.

Finally, the question arises, “who do we torture?”  Certainly, every real terror suspect has some knowledge that can be useful.  Do we get to torture all of them?   Most of the justifications I’ve seen would give us the option to torture someone in a ticking bomb scenario.  Which sounds nice…if you actually know there’s a ticking bomb.  In the normal scheme of things, though, you really need to torture people to find out if a ticking bomb exists, not to figure out where it is.

The vast majority of torture use among those regimes that use it, is directed to obtaining confessions of guilt from criminal suspects.  It comes as no surprise that it’s highly effective at obtaining them.Or do we just torture the higher-ups in the terrorist movement, as a sort of fishing expedition?  This is, I gather, the justification for the interrogation techniques used on some of the al Qaeda biggies.  We thought they were up to something, and we used harsh interrogation to find out what they knew.

The most interesting thing about that is that we didn’t have to brand these guys with hot pokers to get them to give it up.  These guys apparently have little resistance.  Threaten to open a box of StayFree® Maxi-Pads in front of them, and they sing like superstars.  So maybe we got lucky in that some of these guys were easy marks.

But, as the Gestapo experience of WWII shows, sometimes, people will let you torture them to death without telling you anything.  Even in Vietnam, our POWs in Hanoi would resist real, actual torture for extended periods before giving up a “confession” to their captors.

But I digress.

Either you are going to define the torture-liable population so broadly, that officials will pretty much have a license to torture, or so narrowly that, as a practical matter, you’ll never use it.  If the former, you’ve got a slippery slope problem, if the latter, it’s not useful enough to even worry about sanctioning it, rather than just worrying about it on an ad hoc basis.

What would this guy do?

What would this guy do?

Jonah Goldberg has written often about the unwritten law, vs. the written law. Fifty years ago, it was against the law for the police to dispense street justice.  In practice, the beat cop, who walked the same neighborhood day after day and who knew the residents, would occasionally rough up some troublemakers pour encourager les autres, and in so doing, kept the peace on his block.  It wasn’t legally sanctioned, but it worked–and the cop knew that when he did it, he was risking at least his career, if it became a problem.

For a variety of reasons discussed above, as well as other, more prudential reasons in terms of the country’s image, and diplomatic reputation, I’d prefer never to see torture be enshrined in the written law.

I’ve noted before that, when I was on active duty, if I’d ever been faced with getting caught behind enemy lines in a Soviet attack in Europe, I would like to have the option of capturing a Russian officer, and finding out how to get back to our lines.  And, if I had to hook up a field telephone, and make a collect call to his genitals, I’d do it without blinking, if that’s what it took to get my guys back home alive.

I wouldn’t brag about it, or mention it to anyone in responsible authority later, but if I got found out, I’d expect to take the Court-Martial.  And, as long as I’d gotten my guys out, I’d have been happy to do it.

Necessity, it’s often said, knows no law.  But the law shouldn’t explicitly bow to necessity. I would rather have it understood that any torture inflicted is done without sanction, and the official authorizing the torture may be in danger of serious sanctions if he uses it.

It’s probably not the best solution.  But, on balance, I think it’s a better solution than giving the government explicit permission to conduct torture however they see fit.  Torture is problematic for a number of reasons, and the ethics of engaging in it are, at the very least, difficult to parse.  And, as Michael should well know, “hard cases make bad law”.

UPDATE [McQ]: What Dale said.

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24 Responses to Torture…Again

  • Well said.

  • I think most people can agree on this issue once the terms are defined. Limiting it to physical torture helps in drawing a bright line, while also not disallowing everything under the sun as “psychological” torture.

    Stuff like naked pyramids can be considered abuse not torture and still be prohibited.

  • “But, on balance, I think it’s a better solution than giving the government explicit permission to conduct torture however they see fit.”

    Have to agree with that.
    I’ve thought, for some time now, that with available lie detection technology and refined questioning algorithms that reliable information could be extracted without the need for torture. Probably not applicable in a battlefield scenario but in other situations where you have the luxury of time it seems to me that  using this type of method  would alleviate most of the problems associated with torture.

  • You present a persuasive argument.  I especially agree with the idea that it is repugnant to have rules regarding torture enshrined in our laws.  However:

    1. Given the hazy definitions used by both sides in defense of their positions, we must have some sort of workable, legal definition lest our military and intelligence personnel find themselves having to change their procedures every 4 – 8 years depending on the perceived views of the administration (“President Smith let us do pretty much whatever we thought necessary, but this new guy, Jones, probably will throw us in prison of we even say ‘boo’ to suspects.”).

    2.  It seems to me that the fear of torture can be a pretty useful arrow in the interrogator’s quiver.  Put another way, why should a suspect talk when he KNOWS that the interrogator won’t do anything worse to him than repeating “please talk” over and over and over again?  It seems to me that tongues might be a bit looser if there’s the genuine fear that the crazy American interrogator might USE those nasty-looking items sitting on the table.

    There must be a way to make a program that is workable.  After all, we allow our police to use lethal force in the performance of their duties even though we generally regard homocide as a moral outrage.  The reason is that the police are carefully trained to know WHEN they can use lethal force, and we have a variety of mechanisms to punish those officers who act outside the legal boundaries.  We also have a court system that can, within limits, recognize the difference between a well-intentioned transgression of the rules and an outrageous abuse of them.  Why can’t we come up with similar rules and mechanisms governing interrogations?  As I have often written, Congress has been very lax in this regard.  It seems to me that they don’t want to go on record, but rather want to leave everything in the president’s hands so that he can be blamed no matter what happens.  This is a serious matter of national security policy, and should NOT be left undefined in the interests of politics.

    • With something like this: you don’t have to “make” them talk. They just have hear.

      • Interesting technology.  Problem: the machine apparently can only tell you when somebody is being untruthful, which is a big step in making interrogations helpful (I would like to note that the ability to tell when somebody else is lying doesn’t always require technology; my mother’s ability to detect a lie seemed pretty infallible when I was a child!).

        However, it can’t tell you what the truth IS; it can’t make a person talk.  To a certain extent, this type of device COULD make torture or harsh interrogations MORE viable: “OK, we’ve beat you up a bit.  Now, tell us what we want to know. [pause]  Ooops!  The machine says you’re lying (even though I believed you).  So, let’s try again with the rubber hose.  We’ll get to the truth eventually.”

        • With good questioning algorithms I think the truth could be deduced from the lies without the “client” ever having to speak. That’s what I find intriguing about the potential of this kind of technology.

  • Dale, you pretty much encapsulated my views. Here are some thoughts:

    Just as you assert, there is almost no situation where an interrogator will know when it is a “ticking time bomb” situation (which is already, I believe, going to be exceedingly improbable). That seems to suggest that torture would have to be used often, in order to attempt to gain information as quickly as possible, in case that information is time-sensitive. In a large number of these torture sessions, the target will not have time-sensitive intelligence of value to share. Surely then at some point he will give some amount of information that will be false or erroneous. This will require verification, which would waste resources that could be better utilized. The effectiveness of torture then is inversely proportional to the scale of its use; as usage increases, effectiveness drastically decreases. This means it would be useful in only a very limited set of circumstances. So then, one would have to say that it must be used only in cases when the interrogator explicitly knows that there is a “ticking time bomb” — a situation that seems extremely unlikely to me.

    For that unlikely scenario, though, it is far better to rely on an individual American’s ability to determine if torture is appropriate, and act on it according to his own judgment, consequences be damned. This means a torturer will be so certain of a situation’s gravity and that a suspect has valuable information that he will stake his career and freedom on it. That, not any amount of codification, will ensure that it is only used when appropriate.

  • As Harum said, once the term torture is defined, it is fairly easy to draw the lines and make the laws.  Problem is, our elected officials are petrified of producing a legally binding definition of torture.  So typical.

  • Torture as a form of punishment is obviously wrong, even when the person being punished has been convicted of torture. Torture as a routine method of handling incoming prisoners is wrong: “Hey, tell us what you know, followed by 25,000 volts.”

    But when you pull Mo out of a truck filled to the brim with C-4 as he heads down the approach ramp to the Lincoln Tunnel, bring him to me.

    • “Torture as a form of punishment is obviously wrong, even when the person being punished has been convicted of torture.”

      Is it?  Seriously.  I have a hard time agreeing with this when it comes to sadistic, mass murderers.  I think torture is precisely what they deserve, since I can’t think of anything worse. 

      • Well, for one, I think that’s what that guy pictured above might’ve had in mind when they were drafting up the Eighth Amendment . . .

        Now, I don’t think that terrorists and/or enemy combatants are afforded the protections of our Constitution, but I don’t think it is a great idea to fly in the face of it with contradicting laws either, like a codification of torture.

      • That’s another debate. I think that we did well to ban “cruel and unusual punishment” in the Bill of Rights. We’re not an eye for an eye culture. But the Constitution is not a suicide pact, either. So from time to time a tooth, if not an eye, might have to be pulled over the spread of a bio-contagion or a cannister of serin or the odd nuclear weapon.

        • I may have misunderstood your original comment, but… I was responding to the apparent implication that torture as a punishment, rather than interrogation method, may be acceptable. I think the founders, such as George Mason and Patrick Henry (quoted below), seem to vigorously disagree with that notion. And, of course, the concepts of mass murder and genocide predate the Bill of Rights considerably, despite the recent advent of CBRN threats.

          • Me? I don’t think that torture as a punishment is a good idea. Grimshaw suggested that the eye for an eye approach to mass murderers seemed O.K., but my feeling is that’s why you keep the death penalty around. In situations where nothing else will do for particularly horrific crimes, you dispatch the guilty party to the next world.

            My feeling about “torture” — aggressive or harsh interrogation — is that when push comes to shove you look to ends, as opposed to means, especially when the ends are approaching at Mach 10.

          • Martin, sorry, I mistook you for Grimshaw. I hate the new website format…..

  • And, as Michael should well know, “hard cases make bad law”.

    Absolutely, which is why I tried to steer away from the legal issues, and instead concentrate on the moral underpinnings regarding torture.  In order to explore that, however, I needed to state up front and honestly that I am not morally firm on the issue of torture.  While I would greatly prefer that it never be done, I know that I would be lying if I said that torture should “never” happen. 

    As you noted, my post was more inquisitive than declaratory, and I mostly described the “easy cases” where it should be obvious that one particular action is favored over another.  However, I think those cases cast the underlying morality in stark relief.  This is because morals are typically stated in absolutes, yet there are distinct cases where the moral reasons for precluding torture seem to break down.  Why?  Competing morals?  Highly specific circumstances?  When do the morals change?  How do we balance them?  These are the ideas I want to explore (which will become clearer when I write some follow-up posts). 

    This was why I also avoided arguing about a definition.  I happen to agree with yours, but in order to avoid the argument about specifics that should or should not be included, I opted to let all of “enhanced interrogation” methods fall within the definition.  That way, I hoped to elicit what the general moral underpinnings for being against torture really are.

    In general, I don’t think disagree all that much on the subject of torture.  We just all tend to come at it from different sides.  There are certainly those who drive the debate by speaking in absolutes, but that approach fails to illuminate the morals involved (as well as the source of those morals).  I believe that by identifying those morals, etc., we can make the “hard cases” easier.  At least, that is what I hope.

  • Question – Do drugs work at getting necessary information?  If so, is that torture if, after the drugs wear off, there are no lasting effects?

    • It depends on what you mean by drugs. I think that giving someone LSD might legitimately be considered torture, for instance. It would leave no physical signs, but the workover on the subject’s mind could be much worse than the effect of a life-threatening beating on his body.

      A distinction that must always be made is that an interrogation to get intelligence is not the same thing as the interrogation of a criminal defendant by the police. You’re looking for information, not a  court-worthy confession, and the exigency of attending circumstances introduces a time element that can raise the temperature of the interrogatory proceedings.

      There’s also the problem of having someone who has one tiny piece of something–let’s say a phone number–and that’s it. It’s tiny. You need it. He wants to play keepaway. You’re busy. Do you slap the son of a bitch a good hard one just to sharpen his perspective about how much that number means to him?

      If you’re putting together a jigsaw puzzle, which is, by the way, how the counter-terrorism  aspect of the counter-insurgency in Iraq became so efficient over the past couple of years, you need to get those pieces. It ain’t no disco.

    • Although the use of drugs in interrogation conjure up the disturbing spectre of Soviet “psychiatric” hospitals, the fact is the controlled use of mild drugs for the rare cases where coercive interrogation is an imperative could allow us a way to side-step the entire “torture” debate in all circumstances. 

      I personally define torture the same as the dictionary definition, the inducement of physical pain or injury, as Dale does above. This has ironically led me to the position that waterboarding, long at the center of the torture controversy, is plainly permissible, while simultaneously finding the use of stress positions and diet and temperature manipulations—which has been mostly ignored by even the most vehement anti-torture absolutists— completely abhorrent. It would seem to me that when reviewing the use of drugs, the bright line is the inducement of psychosis, the psychological analog to pain. 

  • <i>For what it’s worth… This is from the debate at the Virginia Ratifying Convention regarding the Eighth Amendment (Text taken from ).</i>

    Patrick Henry: […] What has distinguished our ancestors? — That they would not admit of tortures, or cruel and barbarous punishment.
    But Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany–of torturing, to extort a confession of the crime. They will say that they might as well draw examples from those countries as from Great Britain, and they will tell you that there is such a necessity of strengthening the arm of government, that they must have a criminal equity, and extort confession by torture, in order to punish with still more relentless severity. We are then lost and undone.

    Nicholas: “But the gentleman says that, by this Constitution, they have power to make laws to define crimes and prescribe punishments; and that, consequently, we are not free from torture. . . . If we had no security against torture but our declaration of rights, we might be tortured to-morrow; for it has been repeatedly infringed and disregarded.”

    Mr. George Mason replied that the worthy gentleman was mistaken in his assertion that the bill of rights did not prohibit torture; for that one clause expressly provided that no man can give evidence against himself; and that the worthy gentleman must know that, in those countries where torture is used, evidence was extorted from the criminal himself. Another clause of the bill of rights provided that no cruel and unusual punishments shall be inflicted; therefore, torture was included in the prohibition.

    Mr. Nicholas acknowledged the bill of rights to contain that prohibition, and that the gentleman was right with respect to the practice of extorting confession from the criminal in those countries where torture is used; but still he saw no security arising from the bill of rights as separate from the Constitution, for that it had been frequently violated with impunity.

  • In practice, the beat cop, who walked the same neighborhood day after day and who knew the residents, would occasionally rough up some troublemakers pour encourager les autres, and in so doing, kept the peace on his block. It wasn’t legally sanctioned, but it worked–and the cop knew that when he did it, he was risking at least his career, if it became a problem.

    OTOH, Dale, the beat cop didn’t have the ACLU on his ass every time some snot nosed punk was arrested for shoplifting, along with a bunch of liberal pols nodding like so many bobble headed dolls on the dashboard.

  • Two words:  Moral Superiority.
    We will fight our enemies with the certainty that we are better than they are.  We will realize that while eschewing torture and abuse may make us more vulnerable in some ways, it will ultimately strengthen us.  Our people will KNOW that they are the righteous and they are the defenders of righteousness.  We will NEVER be equated with Nazis, Romans, the Inquisition, or the many others that have gone down in history as the servants of true evil.
    At least, that is my dream America.  I don’t think it’s too late.
    BTW, I know I am opening myself up to snark.  I accept that.  But, civility, please.  I don’t know any of you and you don’t know me.
    Free Us!