If torture is sometimes justified, then torturers should be ready to be punished for it
Anthony Scalia, Alan Dershowitz, Dick Cheney (and presumably his boss George W Bush), Jack Bauer, many Republican lawmakers and not a few Democrats all believe that American torture can be justified. These legal luminaries often use a particular example to explain how torture can be just fine, not incompatible with international treaties, US law, or Constitutional prohibitions of cruel and unusual punishment. It’s the “ticking time bomb”. A suspected terrorist is captured, and only by torture can the location of a ticking time bomb (a nuke, if possible, it makes for a better story) be revealed and the lives of millions of innocents be saved.
This extreme case is very, very far from the run-of-the-mill torture carried out by the CIA on a routine basis in the so-called war on terror, as the recently published Senate report has shown.
I have a weakness for the ticking time bomb argument. Indeed, it make so much gut sense that it’s hard to imagine anyone not succombing to it, and heading down the slippery slope of the merry torturer.
The conclusion Dershowitz et al draw from this extreme case is that torture can be justified, and thus legal, in certain cases. But what if we say instead that torture is justified, but not legal?
We could agree that that ticking time bomb meant that torture was necessary, but that the torturer has still committed a crime and should be punished. A jury would likely find attenuating circumstances, and a judge would likely to be clement, but the laws prohibiting torture would remain on the books, would still be enforced, and would retain their moral weight.
For the torturer, such a practice would create a new calculus: Is the information I hope to obtain worth me spending ten years in prison? To prevent a nuke from going off in Midtown Manhattan, I think most people, and certainly a public servant, would accept such punishment. To confirm the kind of tea the number 10 of Al Qaeda drinks? Probably not.
In such a world, it’s likely that torture would disappear, because the thought experiment of the ticking time bomb is just that: a thought experiment, not a real-life situation.
We have laws against all sorts of things that continue to occur. Sometimes laws are imperfect but necessary protections against a slippery slope. I’m thinking, for example, of euthanasia. Even those opposed to this practice can sympathize with a parent who decides to put an end to their child’s suffering. We may want to see the parent indicted and tried, but hope for clemency from their judge and jury. And we may think that despite these cases, such prohibitions are needed to prevent murder from becoming an easy out.
LIkewise for torture. If a CIA agent thinks that torturing a prisoner is the only choice to prevent the death of innocents, then she should torture, but then immediately present herself to the relevant court to be tried and punished. That might make her something of a hero; hiding behind the flag of the war on terror does not. Accepting the possible usefulness of torture (which I don’t, let it be noted) doesn’t mean accepting that torture should be de facto legal.
To be clearer:
Surely Dick Cheney would be happy to spend a couple of years in jail if he truly believes he saved American lives. If he doesn’t believe that this is the case, then all the more reason for him to go to jail.