The Diminishing Marginal Utility of Torture

Across the past few days and in deliberation of the Guantanamo Bay trials we have, all of us, had ample opportunity to note the ideological, intellectual, and moral deficiencies of our opponents. Omar Khadr confesses in a military commission to his crimes, the case against Ahmed Ghailani unfolds in civilian court, and there arrives fresh news of terrorism originating in Yemen. Justice is done, or is undone, depending upon one’s perspective. What we perhaps fail adequately to clutch is that we are all of us in this together. I say this quite without sentiment, my point being only that an explosive device is indifferent to the bend of your politics. If that is not a compelling cause for solidarity, then it happens that nothing is.

Then there is the personal. Here is one example: the cargo planes destined for the United States and for a destruction prevented this past weekend were meant to have exploded in the coming days over Chicago. As it happens, I will myself be flying to Chicago this week. I know this is a facile pairing, but can you honestly say a thought such as this would never have crossed your mind, were you in the same position? Nor is this the first time I’ve had occasion to draw such an inference. From a statistical view of things, any one of us has little to fear — but you are quite probably on the list, comrade. Your kind is marked, by the Takbīr shouting killers, for destruction. If you are not on the list, it is because you are one of the murderers, in which case I will be happy to see your wish for martyrdom fulfilled in the least ceremonious and individual manner possible. That is, without harm to others and with the pointlessness of it all laid bare.

The above point I think must be made with certain force to render my position clear, not for its own sake but to approach a dilemma. Let me put the matter as follows. In both present and future trials concerning terrorism, evidence obtained by torture is and will be a matter for deliberation. The first proposition which constitutes one-half of the dilemma is uncomplicated: torture works. It can and does extract information either unobtainable by other means, or obtained only at extraordinary cost and by exceptional effort. Information obtained by torture may aid convictions of murderers, may assist in undermining terrorist organizations, and may save lives. It can be and has been a useful, effective tool.

There are inevitable problems with torture, which is the second proposition of the dilemma. There is a moral repulsiveness to it, the nature of which I will not labour. Of this, I shall say only that insofar as our means come to replicate those of the theocratic fascists, we surrender to rather than win at the battle. There is a practical matter too. The chief danger of using torture is that over time it undermines the very things it aids. Under torture, people do lie. They make deals, say what needs to be said. The character of information obtained is ever, to those who deliberate it, a matter of doubtfulness. The entire undertaking, first of justice, and then of the larger war itself, becomes a matter of coarse skepticism. Citizens either accept the arrangements uncritically, which is a bad enough thing itself, or they come to have scant confidence in their government, their institutions, and “their side”where the battle for their way of life is concerned. In either case there is a debasement of civil life, the prevention of which ought to be the whole point of prevailing in this “war on terror.”

I state this knowing well that in times of war barbarisms will necessarily issue from both sides of the battlefield. We ought not however to make of them a matter of policy. There is something to be said of the rule of universal law, specifically that it is the outcome of historical struggle against its oppositional representatives, as it indeed continues to be. It is one of the few things for which it is truly worth fighting.

This is why I oppose in general the use of military commissions, as well as the related use of torture. We are not well served by such means, and the ends will in the end ill-serve us also.

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