Pictured: Concentration camp survivors demonstrate torture techniques for Eisenhower, Bradley and Patton
Jeff McMahan’s points in this interview from a couple of years ago are worth revisiting in light of President Trump’s apparent enthusiasm for torture. It’s appropriate to have an absolute legal ban on torture, and an absolute ban needs the support of a strong moral foundation. But that support cannot be found in an appeal to an implausibly absolutist position about the moral status of torture. A truly compelling moral case against torture may be extremely difficult to make in the present political climate.
As McMahan argues, almost everyone agrees that it is at least sometimes permissible to kill in self-defence. So given that dying is normally worse than temporary suffering, it’s hard to see why torture would always be morally impermissible, even in self-defence. It does not follow, however, that any act of torture has ever been or will ever be actually morally permissible — the unusual circumstances under which torture can be justified may simply never arise — or that the law should ever permit or excuse acts of torture. In reality torture has almost always been wrongful, and measures short of an absolute legal prohibition on torture are unlikely to provide sufficient deterrence against wrongful torture. If a court can be persuaded that a given act of torture was morally justified, a degree of leniency may be appropriate; however, the law should not give the authorities reason to think that they can escape punishment for resorting to torture as long as they can provide a compelling excuse. “To effectively deter wrongful torture,” McMahan says, “the law should make anyone contemplating torture feel that if he does so he will be sacrificing himself for the sake of morality.”
I find McMahan’s argument persuasive, but it leaves proponents of an absolute legal ban in a difficult spot just when the issue is more pressing than ever. The absolutist moral position “can seem morally obtuse, and therefore discrediting” to the absolutist legal position, but purely instrumental arguments that make no reference to human rights are not sufficient to support an absolute legal ban. By purely instrumental arguments, I have in mind arguments to the effect that torture does not produce reliable information, or that it fatally compromises potentially reliable sources of information. At most, these arguments establish that torture is usually not worth the bother; this is far short of establishing that torture should never be used. In order to reach that further conclusion, we need to appeal to something like a human right against wilful infliction of physical and psychological harm. And unless there is already widespread understanding and acceptance of human rights (in which case torture would be unlikely to arise as a political issue in the first place), it is difficult to articulate a plausible moral basis for instituting an absolute legal ban on torture in a catchy soundbite. Perhaps this difficulty helps to explain the otherwise bafflingly long life of torture as a live issue in contemporary American politics.
However, there is another, far more disturbing possibility to consider. Supporters of torture say it works; opponents say it doesn’t. It is usually assumed that this marks a point of disagreement between the two sides — that both sides have the same goals in mind, and that they disagree over the efficacy of torture as an instrument for achieving those goals (regardless of whether the matter of efficacy is morally dispositive). But there is one thing that torture works very well at, and that’s terrorizing the populace. In the past, I would have assumed that no one on the other side would explicitly endorse state terror as a legitimate policy aim for the US government. This no longer strikes me as a safe assumption.