argumentative essay against torture

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Torture pros and cons: Is torture ever acceptable?

Source: Composite by G_marius based on Justin Norman 's and KamrenB Photography 's images

Torture is still practised, justified or tolerated by many governments. President Trump has brought this discussion back to the political agenda. Find out more about the potential advantages and disadvantages of torture and join our poll and debate (see below).

Is torture ever acceptable?

Torture is the act of deliberately hurting someone, physically or psychologically, as a punishment or as means of obtaining some information . Although in decline after the Second World War, torture continues to be used not only in dictatorships but also in some democracies. Some claim that torture may be a necessary evil to guarantee peace and security. But many doubt of the real effectiveness of torture. Following an US Senate report on the CIA torture program  the Obama administration introduced reforms to abandon the use of torture. However, Donald Trump , during his first week in office declared that  torture is effective  ( "absolutely, I feel it works" ). Many human right advocates are afraid that this means the return of practices such as waterboarding. The "enhanced" techniques of interrogation used to gather intelligence from  prisoners by some government agencies and organizations, such as the CIA, are questionable from an ethical  and democratic point of view.

From a consequentialist ethical angle these acts of "enhanced interrogation" or torture are justified on the basis of saving lives. Torturing is against the law  in most countries but some utilitarians would claim that if the overall harm prevented is lower than that caused to the suspected criminal, then it is worth it. In the context of war and counter terrorism some countries allow the abuse of prisoners as a means to prevent attacks or locate high profile targets. In this case the welfare and protection of the country (many) legitimizes the harm done to one or few.

However, from a deontological perspective , it can be argued that torture is an intrinsically morally repugnant act that violates human and civil rights . Thus, torture conflics with some of the core principles that underpins our democratic systems. 

Watch these videos providing opposing view on whether turture can ever be justified:

Torture pros and cons

We summarize some of the most commonly cited advantages and disadvantages of the utilization of torture techniques such as waterboarding to extract information:

• Torture can be sometimes the only way to extract information from suspect criminals. Some terrorist or members of organized crime gangs are trained not to reveal information.
• Torture can speed up interrogation processes. This could essential in cases when there is little time to prevent an attack.
• Some torture techniques, such as waterboarding, do not entail long term physical consequences for the prisoner.
• Thanks to torture, sometimes it is possible to foil terror attacks and save the lives of many. The harm caused to one or few people could prevent much greater harm to society.
• Some terrorist and criminal groups use extremely brutal methods to torture and kill their victims. Therefore, comparatively speaking, the most commonly used torture methods used by police and intelligence services are not that cruel.
• From a retributivist perspective, the damage that torture causes to some criminals can be justified as a deserved punishment.
• The use of torture by government may have a deterrent effect upon the comission of crime.
• Tortured people may still withhold the valid information they know or reveal misleading information. There is no conclusive evidence that torture has been the key to foiling terrorist attacks or capturing or killing terrorist leaders. For example, the US senate investigation did not find that the use of waterboarding was crucial in the killing of Bin Laden.
• Often innocent people or people who do not have the information sought are tortured.
• Torture can have long term physical and psychological consequences for those who are tortured.
• Agents torturing suspects may also develop psychological traumas.
• Sometimes torture goes beyond the search for information and becomes a sort of cruel entertainment for torturers. People may put into practice some sadistic tendencies on those they are simply expected to question.
• Torture is illegal in most countries and the International Criminal Court class torture as a crime against humanity.
• The use of torture by governments can be use as propaganda by terrorists.
• Torture is unethical. How can we expect citizens to act according to the laws and commonly accepted moral standards when the government does not respect them?

Emerging questions: Should governments, in some cases, use torture to save lives or prevent further harm to their citizens? Is torture justified? Is the use of mass surveillance and    torture programs   justifiable in the context of the "war on terror"? Does torture work? Does it really save lives? Does the use of torture defeat the very foundations of the systems we want to preserve?

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“The Case Against Torture,” by Alisa Soloman

In  “The Case Against Torture,”  author and professor Alisa Soloman enumerates the reasons torture should never be practiced or justified in a civil society.

Click on the link to view the essay: “The Case Against Torture” by Alisa Soloman

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University of Notre Dame

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On the Ethics of Torture

Uwe Steinhoff, On the Ethics of Torture , SUNY Press, 2013, 191pp., $24.95 (pbk), ISBN 9781438446226.

Reviewed by Gregory Fried, Suffolk University

Torture is a problem from hell. Confronting torture seriously means weighing some of our most cherished principles and traditions against threats that once might have seemed fantastical but after 9/11 no longer do. On the one hand is a long-standing taboo against torture as a profound violation of human dignity. Deeply influential institutions, such as the Catholic Church, [1]  have taken an absolutist stand against torture, and the United Nations Convention against Torture, to which the United States is a signatory, allows "No exceptional circumstances whatsoever" to undermine a total ban on the practice. [2]  On the other hand are harrowing scenarios, some hypothetical but others now all too real, which pinion us with a desperate need for life-saving information.

Into this hell steps an important book by Uwe Steinhoff,  On the Ethics of Torture . This book is rather odd in  tone . Steinhoff makes the case for torture in certain limited circumstances, and he evidently has become indignant with some absolutist opponents of torture, who have accused him of "careless philosophizing" about torture scenarios (ix) and of undermining ethical discourse (chapter 7). In response, Steinhoff frequently treats the arguments of his opponents with scorn and sarcasm. Furthermore, in philosophical  style , this book trades heavily on what has become an epidemic in contemporary applied ethics: extravagant hypotheticals. Steinhoff litters his arguments with often gleefully graphic examples involving weapons that cause excruciating pain, disintegration guns, and vaginas that kill. Even making allowances, I find this rather hard to take; perhaps that is a merely aesthetic reaction, but I will return to it after treating Steinhoff's main argument.

That argument is indeed important, one that any absolutist opponent of torture (including myself [3] ) should take seriously. The core thesis is blisteringly simple: "torture is justifiable in certain narrowly circumscribed circumstances, in particular in certain self-defense situations" (ix). Steinhoff convincingly insists that his limited defense of torture is not based on consequentialist considerations. Quite the contrary, Steinhoff calls himself a "threshold deontologist" (44, 77); he supports deontological principles until a threshold of unacceptable consequences overrides the principle in question. This is not unusual for a deontologist (think of the Kantian who would lie to the Nazi hunting Jews), [4]  and Steinhoff is still justified in calling himself one, because (echoing Ronald Dworkin) taking rights seriously means allowing rights to trump utility  most  if not  all  of the time (43). What Steinhoff opposes is  absolutism  about acts. This is where the extravagant hypotheticals come in: to demonstrate that for any act you might think of as always absolutely wrong, we can conjure a  conceivable  scenario in which a reasonable person would have to allow that act.

This is not the first book to make a right-based defense of torture, [5]  but it makes the case powerfully and rebuts in detail the major anti-torture authors, such as David Luban, Henry Shue, David Sussman, and Jeremy Waldron. Steinhoff defines torture as "the knowing infliction of continuous or repeated extreme physical suffering for other than medical purposes" (7), defining "extreme" as anything roughly equivalent to "drilling on the unprotected nerve of a tooth" (9). Steinhoff discounts short "shocks" of pain, and he is skeptical about counting psychological pain a torture (9). This excludes much often considered torture: exposure to phobias, mock executions, and the like, as well as some practices that mix the physical and psychological, such as sleep or sensory deprivation, and exposure to temperature extremes. For the sake of argument, though, we should grant Steinhoff's restrictive definition, because if he can succeed on its basis, that is decisive enough. We can quibble another time about its parameters.

Self-defense is the heart of Steinhoff's argument: "People have a right to defend themselves or others against wrongful aggression, in particular if the aggression is life-threatening" (11). This premise is not consequentialist; it is about the  right  to defend oneself and others against unjust attack. Some might object to a right to self-defense (a pacifist might believe that death is preferable to acts of violence), but Steinhoff argues well that even Kant's deontology supports a  prima facie  right to self-defense, and so also a  duty  for a legitimate government to uphold that right in protecting its citizens against aggression (133).

Steinhoff's next move is to show that interrogative torture -- never punitive or sadistic torture (7) -- may be necessary for self‑defense. Here Steinhoff is on most solid ground with real-life "Dirty Harry" examples, the Daschner and Mook cases, where German police captured kidnappers who then refused to reveal where their respective victims were hidden and presumably in grave danger.  In the Daschner case, the kidnapper was threatened with torture and gave up the location of the child, who had already been murdered, but the police did not know that.  In the Mook case, the child, who had been imprisoned in a wooden box, was saved when the kidnapper revealed the location after a beating (which we can take as a case of torture for the sake of argument).  In each case, the police tortured the kidnappers and obtained information about where the child was hidden. Tragically, the Daschner child was already dead, but the Mook child was saved. Steinhoff reasonably asks why interrogational torture in such cases would be wrong, where there is no other credible option and the torture is both necessary and proportional. If we may use lethal force in self‑defense, why not torture? Also, if torture is the only option, it does not matter that torture sometimes fails or has a low chance of success; a victim of attempted rape, armed only with a sharp pencil, would still have a right to self-defense with that.

Absolutists have often argued that torture is worse than killing in self‑defense, but Steinhoff finds this unconvincing. To see why, we need to step back from torture and consider other horrible things we sometimes think are right if we take seriously the right to self‑defense against unjust assault. Violence, including killing, can be horrific (19), as is torture, but may still be right if necessary to save a victim of unjust attack. This is partly a function of nomenclature: We don't call justifiable violence "assault" or justifiable killing "murder," we call them "self-defense." There is no such terminological distinction for inflicting justifiable pain; it is all called  torture . Steinhoff asserts that given the choice, for oneself or a loved one, between being killed or being tortured, we would generally choose torture. True, as torture's duration and intensity increase, it is more and more likely to cause lasting physical or psychological damage, as studies have shown. "In contrast to this," Steinhoff counters with characteristic sarcasm, "empirical studies show that not 20, not 30, not 98, but  100 percent  of those who have been killed are dead" (23). Now, this is from the perspective of the  target  of the act, not the  actor , and there are deeper complexities at work that I cannot address here, but Steinhoff makes the cogent claim that killing is  usually  worse than  most forms of torture. Killing ends everything forever, torture may be survived, so if we accept the former in self‑defense, then we must accept the latter.

This core argument does a lot of work for Steinhoff. Absolutists often argue that torture is a horror because it breaks the will. As Steinhoff points out, torture does not always do so, but even when it does, so do many things we consider acceptable in collective self-defense, such as plea-bargaining with criminals and coercive detention (65). Anti-torture absolutists also argue that torture impermissibly targets someone who is defenseless, but other permissible forms of self-defense can do that, argues Steinhoff (93-4). Consider artillery out of enemy range, or a police sniper targeting an unarmed kidnapper about to push a child off a roof. But can there be self-defense if the defenseless target of torture is no longer a threat? Steinhoff reasonably answers by defining an active attack as follows:

one completes one's action x at the last point where one could have prevented the intended effect from coming about. Thus the terrorist [in a ticking bomb scenario] and the kidnapper are engaged in their attack on the child or the persons to be killed in the explosion for as long as they refuse to give the life-saving information. (37)

Even in captivity, the terrorist or kidnapper is still  acting , still  attacking . The rights of innocents trump the rights of aggressors.

While Steinhoff defends torture in self-defense, he argues adamantly against its institutionalization, such as by the "torture warrants" advocated by Alan Dershowitz: We do not need institutionalization because such cases are rare enough (64) that its hypothetical benefits "are not worth the risks" (67); I will return to this problematic point later. Steinhoff's argument for the  legalization  of torture under necessity statutes, but against its  institutionalization , links to his refutation of what he calls the "ticking  social  bomb" objection to torture, made by Shue and others, that if we allow torture in rare and limited cases, it will spread and corrupt a society's institutions. Against this threat of the inevitable "metastatic growth" of torture (66), Steinhoff points to the 1988 Mook case: torture helped rescue a buried child, yet Germany suffered no slide into generalized torture (58). For Steinhoff, the principle that "hard cases make bad law" actually supports limited use of torture because the absolutist anti-torture position "shields an aggressor from necessary and proportionate defensive measures by or on behalf of the victim . . . [and therefore] actually  aids and abets  the aggressor and violates the rights and the human dignity of the victim" (60). In a contest between the rights of an innocent victim and an unjustified aggressor, the victim's should triumph -- as they do when we kill aggressors in self-defense, or imprison them for crimes, despite the otherwise presumptive rights to life or to liberty.

These are the key elements of Steinhoff's self-defense argument for torture, and they are enough to move an anti-torture absolutist such as myself. But how far?

There are several serious problems with Steinhoff's argument. The first of these has to do with the  scope  of self-defense. Self-defense, understood broadly to include other-defense, has long stood as the bedrock justification for  jus   ad bellum , justice in going to war. Steinhoff's examples touch on  private  self‑defense, using torturous pain against an attacker when you cannot call on police aid, and  police  defense against criminal threats within a state. But what about a nation's  military  self‑defense against foreign aggression?

Steinhoff wants to argue that the circumstances that justify torture because of the dire need for life-saving information, such as kidnappings or ticking bombs, are exceedingly rare. But these are cases  within  states, not  between  states (or significant non‑state actors) at war. In wartime, the number of enemies with potentially life-saving information rises dramatically: field officers with knowledge of impending attacks; civilian leaders with knowledge of overall strategic plans; scientists with knowledge of weapons systems; and so on. May they be tortured when captured? Steinhoff insists that his interest in torture "was aroused by the German Daschner case, that is, by a child-kidnapping case, not by the 'terrorist threat' the American debate is obsessed with" (x). He derides the American obsession with "'the war on terrorism' and the silly and often racist 'us-versus-them' ideology that accompanies it" (x), and he deplores Abu Ghraib. Steinhoff concludes that if

torturing an Islamic terrorist is justified to avert the explosion of a ticking bomb that would kill thousands of innocent Americans or Israelis, it then is obviously also justified to torture a Christian or Jewish  state terrorist  if by doing so one can avert a more of less indiscriminate bombing campaign by the American or Israeli air force that would (once again) kill thousands of innocent Palestinians, Iraqis, or Afghans. (x; my emphasis)

But this is precisely the problem. The ticking bomb scenario straddles police and military action for self‑defense, because a domestic  or  a foreign enemy might plant it. Steinhoff wants to argue against the institutionalization of torture because "The ticking bomb case or the Dirty Harry [kidnapping] case is a very rare case," and so "it is safe to assume that all the torture that happened or happens in Abu Ghraib, Afghanistan, and Guantanamo simply has nothing to do with ticking bombs or hostages who are about to die" (64). He says the latter are  exceptions . Yet his own example that preventing an "indiscriminate bombing campaign" would justify torturing a "state terrorist" (presumably he means a civilian or military commander with information that might impede such an campaign) shows that  in war  such scenarios are far from " enormously rare " (67). Indeed, they may well be the norm, given how vital wartime intelligence and how devastating an enemy attack can be. So the "state terrorist" will not be a rare individual but rather may be hundreds, thousands, or more. If they possess decisive military intelligence as offenders in an unjust war, then by Steinhoff's own argument, even in custody they are  still actually attacking  and thereby violating the rights of the victim community.

Steinhoff relies on the very rarity of examples of  police  torture in Germany, a nation that has not suffered military attack or been (substantially) at war for nearly 70 years, to show that legalized self-defensive torture need not metastasize (72-3). But if torture against state (or quasi-state) terrorists is justified, as Steinhoff himself admits and as self-defense at the national level would require, that will justify torture on a much larger scale, and normalization and institutionalization seem inevitable. That is precisely what happened in the American case. When Bush's Office of Legal Counsel justified torture against some terrorists, fearing other massive attacks against civilians after 9/11, [6]  the practices, we now know, did metastasize institutionally across theaters of the world‑wide "War on Terror." [7]  This is rather powerful evidence. It does no good, as Steinhoff attempts, to say that "the torture in Guantanamo is not self‑defensive nor an instance of a justifying emergency" (157) and may not be used against terrorists for "fishing expeditions" in order "to find out more about their networks" (158), because one can simply say that the American torture regime was botched. If, as Steinhoff admits, "state terrorists" (i.e., large-scale aggressors) may be tortured to prevent bombing campaigns, then when there  is  good reason to believe that captured aggressors have vital information that could save lives, then they may justly be tortured, and America's criminal and incompetent torture regime is not an argument against  properly employed  wartime torture any more than a botched or disproportional attempt at more conventional self-defense would refute self-defense in general.

A second problem arises from Steinhoff's argument from necessity. He allows that in very rare cases, it might be right to torture an innocent. Steinhoff concocts the unfortunately plausible case of a sadistic but truthful soldier who gives a captured father the choice "to either waterboard his son for 30 minutes or to have him executed" (42). For Steinhoff, the right choice is clear: torture the child. If so, then Steinhoff must "bite the bullet" and ask, what about a ticking-bomb terrorist: if he won't break, may we torture his innocent child in front of him? Steinhoff argues that this would not be justified because "there is no evidence that would suggest that torturing a person by torturing somebody he deeply cares for is more effective in retrieving the vital information than torturing the first person himself" (42). This strikes me as a cop-out, given Steinhoff's argument. He frequently resorts to fantastical thought experiments to demonstrate that certain ethical outcomes are at least conceivable and therefore undermine absolutist prohibitions. Well, isn't it conceivable that a terrorist might have congenital analgia, the inability to feel pain, but still feel deeply about his child? Or what if time were very short and the stakes very high -- say, a nuclear bomb planted in a city? Steinhoff is willing to sacrifice some innocents for thousands or millions of other innocents. As he says: "You do the math" (52). Horrendously, this is not conjectural: John Yoo, formerly of the Bush administration's Office of Legal Counsel, has argued that the president has the authority to order the crushing of the testicles of a terrorist's child. [8]

And this brings us to my third reservation about Steinhoff's argument: its heavy reliance on hypotheticals. Thought experiments have done yeoman's work in philosophy ever since the tale of the ring of Gyges in Plato's  Republic . There clearly is a place for them in testing our moral intuitions, yet they have been taken too far down the trolley track in contemporary ethical theory. At issue here is  modality : the meaning of the possible for making sense of ethical life. Let me suggest two modes of the possible. One is the  merely conceivable , which involves science fiction elements or extraordinarily rare circumstances, things that are not logically impossible or outright violations of the laws of nature. The other mode is the  genuinely plausible , scenarios that are either actually possible (because they have happened) or feasible given a reasonable construal of existing realities. I would like to narrow the use of  hypothetical  to the latter set of  plausible  cases and coin a new term,  hyperthetical , for the merely conceivable.

I will grant that hypertheticals, such as the ring of Gyges or "philosophical zombies" (a recent craze in philosophy of mind) may be useful in testing our intuitions, ethical and otherwise, but they have limited value for thinking about what is right to do in the world we actually inhabit; indeed, they may  impede  good ethical judgment. At issue is the status of  acts  we would normally consider anathema. For  any  such taboo act -- rape, torture, child abuse -- it is possible to imagine a  hyperthetical  that would make us say, "Well, gosh, in a case like  that , I guess we would have to allow it." Steinhoff does just this for rape in the case of "Innocent Jenny" attacked by "Serial Killer," who both happen to be naked: "Jenny, who is a doctor, is currently treating her vaginal infection with a potent new ointment, which has the side-effect of killing any man whose penis is exposed to it long and severely enough" (149). In Steinhoff's scenario, Jenny and Killer struggle, and she manages to force his penis into her vagina while he says "No," thereby justifiably raping him to death in self-defense.

If this is not a  hyperthetical , I don't know what is. The point is this: to say that there are some things we should not do because they are wrong does not mean it is  inconceivable  that there might be extraordinary exceptions. The threshold of exception may be higher or lower depending on the act in question, with lying at the low end and things like killing and torture at the high end.

The reality is that the question of torture is part of an ongoing debate with real practical consequences, and Steinhoff owes us a fuller story about what his argument justifies. A kidnapped child buried alive is now sadly a plausible  hypothetical , but as we move along the range of modality to  hyperthetical  scenarios, something dangerous happens. Here I want to make an Aristotelian or Burkean argument about the ethical habits of both citizens and state institutions. Such habits are fragile, as torture's explosion in the "War of Terror" demonstrates. Jane Mayer has written about how Brigadier General Patrick Finnegan, then dean at West Point, led a delegation to the producers of the TV show "24" (literally a "ticking" deadline), because it had convinced so many West Point cadets that torture is justified, especially as employed by the show's hero, Jack Bauer, in dealing with life-and-death emergencies. The delegation did not convince the producers to alter the program's message, and "24" has been one of the most popular shows with troops stationed abroad after 9/11. [9]  I know first hand how seriously the military takes this concern, because my father and I were invited to West Point to discuss torture with faculty and students in 2011, after our own book on the subject came out.

The point is an Aristotelian one: We cannot form a shared culture of ethical life on the basis of outlandish hypertheticals. Practical wisdom, Aristotle's  phronêsis,  depends on developing ethical judgment and decision-making around hypotheticals that are tied to circumstances that we can recognize and share as plausible touchstones for life as we live it, so that when an exception does occur, we can deal with it precisely as an exception. Hypertheticals, such as Naked Jenny, or torturing innocent children, have the effect of unhinging practical wisdom from the historical context that any robust community of shared norms must learn to inhabit. They are a Trojan Horse: by accepting a remote possibility as setting the standard for action, the everyday and ordinary are utterly transformed. This is why an institution like West Point depends on a code of honor and on absolutes such as the prohibition on torture: a  presumptive inconceivability  imbues both individuals and communities with the requisite ethical intuitions, even if in rare cases these may be up‑ended.

But after 9/11, is a nuclear bomb planted in a city still just a hyperthetical? Maybe not. Torture is a problem from hell.  It   tortures   us  by putting cherished principles on the rack and forcing us to give in to exceptions. Torture  is  in fact worse than killing in this sense: history matters ,  context matters, and at this time in our history, it is torture -- not killing, not rape, and certainly not disintegration ray guns and killer vaginas -- that threatens to overturn principles vital to the foundation of liberal democracy. This is no hyperthetical concern, given the spread of torture under Bush. I will cede to Steinhoff that there are conceivable and isolated  hypotheticals , such as the Mook case, and now, horrifyingly, the planted nuclear bomb, that could make torture justified in self‑defense. But just as Steinhoff calls himself a threshold deontologist, we should stand for a  threshold absolutism  on torture. We must insist on the wrongfulness of torture, even if we accept that there might be exceptional cases where the wrong may be excused. Consider the intuition that while we might give soldiers in a just war medals and a parade, we should recoil at doing this for torturers, even in something like the Mook case. Above all, we must never make such excuses  ex ante , as a matter of open law or secret policy, much less make torture permissible in war, where it will indeed metastasize. Here I disagree with Steinhoff about legalization: violations of such a foundational norm must seek pardon  ex post facto , not license  ex ante . It may seem paradoxical that the justified may still be wrong, but such paradoxes are a feature of the tragic in the human condition, and we must mark the outer limits of hell as best we can.

ACKNOWLEDGEMENTS

I am grateful for conversations with Charles Fried, Mandeep Minhas, and Jeppe von Platz, which helped me develop the ideas in this review; its faults are entirely my own.

[1]  See Pope John Paul II ,  Veritatis Splendor , section 80.

[2]  See Article 2.2 of the  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment .

[3]  Charles Fried and Gregory Fried,  Because It Is Wrong: Torture, Privacy and Presidential Power in the Age of Terror  (New York: W. W. Norton, 2010).

[4]  See Charles Fried,  Right and Wrong  (Cambridge: Harvard University Press, 1978), 10.

[5]   For example: Stephen Kershnar,  For Torture: A Rights-Based Defense  (Lanham, MD: Lexington Books, 2011).

[6]  For an account of the perceived threat level following 9/11 and the Bush administration, see Jack Goldsmith,  The Terror Presidency: Law and Judgment Inside the Bush Administration  (New York: W. W. Norton, 2009).

[7]  See  Inquiry into the Treatment of Detainees in U.S. Custody: Report of the Committee on Armed Services, United States Senate, November 20, 2008 .

[8]  For John Yoo’s remarks, see Sidney Blumenthal, “ Meek, mild and menacing ,”  Salon , January 12, 2006, retrieved May 5, 2014. 

[9]  See Jane Mayer, “ Whatever It Takes: The Politics of the Man Behind ‘24,’ ”  The New Yorker , February 19, 2007.

by Bernard Chazelle

A signatory to the UN Convention Against Torture, the United States "does not torture." [1]   Yet abundant evidence indicates that it does, directly or by proxy—and in fact always has. An old American tradition of state-sponsored torture even has its own lexicon: SOA, Kubark, Phoenix, MK-Ultra, rendition, CIA's "no-touch" paradigm, etc. It is quite popular, too. Torture enjoys more than twice the public support in the US that it does in France, Spain, and the UK. [2]   One of the most watched TV dramas, 24 , is but an extended ode to the glories of torture. The former director of a prominent human rights center at Harvard writes of the judicious use of sleep deprivation, hooding, and targeted assassinations; he concedes the government's need to "traffic in evils." [3]   The nation's most celebrated defense attorney recommends "torture warrants" and "the sterilized needle being shoved under the fingernails" ("sterilized" because he is a liberal). [4]   The most cited legal scholar in the land writes: "If the stakes are high enough, torture is permissible. No one who doubts that this is the case should be in a position of responsibility." [5]  

Anti-torture voices have been left sounding defensive, insecure, incoherent. Yet, while boasting the world's highest incarceration numbers and supermax prisons characterized by a warden as a "clean version of hell," the US has also begun to question its tolerance of torture. [6]   The debate is on, and torture is winning. I intend here to lay the foundation for a strong, cogent anti-torture position. It rests upon three principles:

• Torture is always wrong;
• Torture must be banned by law unconditionally;
• Not all torture decisions should be morally codified.

The first two principles reject torture on moral grounds (it's wrong) and legal ones (it's bad). Unfortunately, they do not imply that one should never torture. If, indeed, our only choice is between two acts that are immoral, these two rules alone won't tell us what to do. This central dilemma arises in principle—we can all imagine ourselves in an extreme situation about which we cannot say with certainty that we would not torture—but does it arise in practice? Many say, with some justification, that it does not. Whatever the case may be, there is a hefty price to pay for dismissing the central dilemma on implausibility grounds, as many liberals are wont to do. Once the improbable is deemed morally irrelevant, torture can no longer claim the status of absolute wrong, for there is no such thing as an "absolute-wrong-in-practice." Any serious condemnation of torture must account for the central dilemma.

Hence my third principle. It stipulates that no ethical code (ie, universal decision procedure) should tell a would-be torturer what to do in all situations. This is to avoid rationalization and, beyond it, the dilution of moral responsibility in the hypothetical case where not to torture is no less an immoral option than to do so (the central dilemma). The third principle is a point of meta-ethics. It is not a moral rule per se, but a statement about the inapplicability of moral rules. It is designed to overcome the justificatory purposes embedded in any ethical code. One may object that the central dilemma arises with any moral wrong, so why single it out? Because it lies at the core of the "torture issue" itself, which, with the wide support it enjoys, is indeed an issue. How to aggregate universal moral principles into decision procedures, a central problem in ethics, is in my view the only interesting aspect of the torture question; the rest is straightforward.

Like many, I feel strongly enough about torture to find the very notion of a "torture debate" distasteful. But sentiment alone means nothing. I feel strongly about racism, too. But racism is not wrong because it offends my sensibilities. It is wrong because it violates reason and human dignity. Likewise, if we cannot offer a reasoned account of the absolute wrongness of torture (especially given the wide public support for it) then our impassioned opposition, indispensable though it may be, will still be, strictly speaking, meaningless. It also matters because one cannot fight effectively for a cause one does not understand. Is it a coincidence that torture has remained so popular in this country amidst such an impoverished public discourse? [7]  

W hat is torture? "I know it when I see it" is a fine answer and rough agreement with common intuition will do. Supermax incarceration and prison rape can be construed as institutionalized forms of torture. For the purpose of this essay, however, I narrow down the definition to the forced exchange of information for the relief of unbearable pain. Much like slavery, torture is coerced trade. To many, its abhorrence requires no empirical evidence: it is a priori, intuitive, and visceral. So much so, in fact, that even asking why seems immoral, as if merely speaking of a ghost might make it appear.

But, if torture is so evil, why is it so hard to explain why? Let's try. Some say a society that allows torture loses its soul and brings shame on its members. This is true, but it explains nothing—at least no more than calling murder wrong because it makes you a bad person. A line often heard is that torture does not work. Never mind the fragility of a proposition that is both unprovable and falsifiable. Even if true, this claim is a gift to the torturers: "Make it work, Mr Inquisitor, and the moral turf is yours." It's like rejecting slavery because "it does not work" or opposing cannibalism on nutritional grounds. Consequentialism is thin gruel against torture. Beware of the sentence that ends with the words, "therefore torture is evil." Better for it to start, "Torture is evil, therefore..."

This brings us to the deontological perspective. Do we recoil from torture because it treats a person only as a means to an end? It is a principled view that might account for our rational rejection of torture, but Kant's Categorical Imperative is too much at variance with Anglo-American norms to explain the instinctive revulsion the practice commonly elicits. (As the death penalty illustrates, note that popularity does not contradict abhorrence.) In his paeans to torture, Dershowitz is merely echoing Bentham and, beyond it, the reigning utilitarianism of our time, which, from conditional welfare to advertising, routinely flouts Kantian ethics. And yet, is there a doubt that the wrongness of torture finds its source, not in a holy book or in the final link of a chain of observations, but deep in humanity's moral intuition? On this we all agree.

Or do we? Few would argue that waterboarding Khalid Sheikh Mohammed was worse than shooting him in the head. Yet killing does not make us wince the way torture does. Why? Could it be the excruciating pain? Doubtful. Baby Mohammed lost both legs during Shock-and-Awe and, over a 10-hour period, bled to death stuck in the debris of his home, a horror entirely foreseen in its outline, if not its particulars, by the architects of the war. The baby's pain vastly exceeded that of his namesake. Yet if Rumsfeld must one day cross Europe off his travel plans, it will be because of Khalid Mohammed, not baby Mohammed—despite the former SecDef's direct responsibility in the latter's agony. Pain and death do not explain why torture feels so evil.

Then what does? Perhaps the deadly mix of fear, humiliation, abandonment, and open-ended sadism that the practice connotes. The torturer never says, "I go home at 5." Torture stirs in all of us the age-old anxiety of a cruel deity that keeps us forever conscious to suffer an endless agony. Pain, like relativity, distorts time. (A root-canal patient can tell you all about eternity.) Past a certain point, the victim's fear is no longer that he will die but that he won't. Torture is a window into hell, with a satanic god cast as a human sadist. I believe one cannot grasp the role of torture in the imagination without integrating its metaphysical resonance. Torture rehearses eternal damnation. And that's not a good thing, because hell scares the hell out of everyone, even those who don't believe in it.

To add insult to injury, the torturer reflects back to us a magnified image of that repressed speck of sadism buried in all of us. This did not always bother us. God gave Moses not one but two commandments against lust, and not a single one against cruelty; likewise, Augustine deemed cupidity a more serious offense. It was not until Montaigne and Montesquieu that cruelty acquired a special status in moral philosophy. [8]   Our revulsion toward torture is hardly universal—children can be astonishingly cruel to animals—but, rather, the sign of a certain liberal disposition. Torture offends us through its frontal assault on human dignity. Beyond subverting free will into "anti-will"—your being tortured does not simply violate you: it makes you violate yourself—it denies something even more fundamental than freedom: personhood. It dehumanizes not only the victim and the torturer, but society as a whole. Or so our modern liberal sensibilities tell us.

S hould torture be legalized in exceptional circumstances? The answer is an unequivocal no. The ban must be unconditional. Why? Because grotesquely evil behavior must be criminalized? Pleasing though it may be, this simple answer won't do. We must first examine whether there might not be a utilitarian reason to make legal exceptions. (Even the most committed deontologist will recognize the need to test laws against their consequences.) I will show that there is no room for exceptions by revisiting the three arguments central to the issue: TBS, self-defense, and torture creep. I'll also discuss the criminal prosecution of torturers.

The ticking bomb scenario (TBS) would appear to beg for an exception—see [9] for a definition. (I'll assume the usual conditions of imminence, gravity, proportionality, and certainty, without which TBS is not worthy of consideration.) The first issue to address is consistency. TBS advocates often lack the courtesy to grant the same rights to their enemies. They remain oddly silent on whether, say, the Taliban would be entitled to torture captured American soldiers thought to know about imminent drone attacks. There might appear to be a normative basis for the double standard. After all, we're the good guys and they're not, so why should we grant them the same moral latitude? That's nonsense. Our own code of warfare, such as it is, dictates that it apply equally to both sides—as do the Geneva Conventions. Whether it should be so or not is an interesting philosophical question, but in practice this point is already settled.

The legal issue hangs on the "rarity principle." We all see the need for a law against murder. But do we need a law for a bad act that happens at one millionth the rate of murder? Probably not. Legality should offer only a blurry reflection of morality, not its mirror image. Whereas morals delineate complex fractal lines, laws should follow smooth contours free of singularities. As the saying goes, "Hard cases make bad laws." This is not a weakness of the law but a strength: that's how it can be both universal and enforceable. TBS theorists will agree but say: "Look, 1,000,000/1,000,000 = 1, so an action likely to cause one million deaths at one millionth the rate of murder matches the expected harm of murder, and hence merits its own law; ergo, legalize torture. QED." A three-word refutation: Break the law. No one's yet suggested a new speed limit sign: "55 — Unless You're Taking Your Dying Uncle To The Hospital. " Speed up if you must, and pay the price later. Tucking exceptions into law is courting the same trouble as overfitting a machine learning classifier, ie, loss of generalizing power and diminished appeal to universality.

Self-defense was invoked in the infamous Bybee "torture memos." [10]   On the face of it, this is preposterous. A torture victim is not a threat. A captive terrorist such as Khalid Sheikh Mohammed is a culpable bystander , not a culpable aggressor . Therefore, first, the argument would need to appeal to self-preservation and not self-defense; second, this in turn would crash against the accepted legal doctrine that bystanders, even guilty ones, may not be hurt intentionally. [11]   Perhaps a legal argument of "distributive" justice could be made that, if harm is unavoidable, it is preferable to inflict it on the guilty party if there is the option. But, by that logic, a gunman who shoots you might be forced to give you his organs to save your life: if one life has to go, hey, guess which one? Trouble is, this constitutes a brand of justice far too alien to our own to be acceptable. To that normative consideration, I would also guard against the slippery notion of "collective self." Most aggressive wars in history have been fought in the name of self-defense. This might then justify the torture of war prisoners when one's country is under attack, thus losing the classical distinction between jus ad bellum (why one may go to war) and jus in bello (how one may fight a war). Even if all other options have been tried, the torture of terrorists cannot be called self-defense.

The case of individual, non-state sponsored TBS is not as clear-cut. You're entitled to stab a man on self-defense grounds if you see him break into your house and try to strangle your daughter. (No one will dispute that your "self" may extend to her.) So why can't you do the same if he refuses to divulge her location after he's kidnapped her and buried her alive with 20 minutes left to live? Simple: because the man is not attacking your daughter. But isn't his silence every bit as much a weapon as his hands? After all, he can wield either one at will to decide her fate. One can draw two distinctions, neither of which resists scrutiny.

The first one is epistemic: your belief that the man knows the burying location of your daughter and that she is still alive cannot match the certainty of your witnessing her strangulation. This can be postulated away—certainty is an accepted part of any serious TBS narrative. (No need to assume here that what you believe is true: only that you have no reason to doubt it.) The other distinction, silence vs strangling, ie, omission vs commission, concerns neither causality nor intentionality—in both cases the man acts willfully to kill. It rests solely on timing, a consideration of no discernable normative relevance. One can, likewise, torture by omission. If the captive were diabetic, it would be torture to withhold his insulin until he talks, since this would fit our characterization of torture as a form of coerced trade. In sum, tying a stand on torture to a distinction between omission and commission is dicey. And even a plausible self-defense plea (which, it is fair to say, would never happen in practice) must give precedence to the rarity principle: break the law if you must.

Torture creep is yet another reason to make the legal ban watertight. The historical record indicates that the slightest legal opening to torture will metastasize into widespread institutional abuse. This "cancerous" spread affects intention, which leads to intimidation, submission, and extraction of false confessions. Even a state that allows torture only in rare cases will soon insist on competent torturers; hence torture schools, torture experts, torture research, and, given the gravity of the matter, an administrative state structure to oversee it all. In other words, it will build itself a "School of the Americas." [12]   The evidence is overwhelming: torture intended as a security tool will always morph into an instrument of power. That alone justifies a total ban on torture.

Finally, how much leniency should a judge extend in hypothetical cases of torture that demonstrably save lives? It would seem wise to grant judges enough sentencing discretion to keep would-be torturers in the dark and induce them to proceed on worst-case assumptions. Just as torturers may not invoke the Nuremberg defense, so anyone who orders torture, directly or by proxy, must be held legally responsible. Wartime torture admittedly poses a conundrum. There is empirical evidence that it is an inevitable by-product of aggressive warfare. If so, it may thus fall under the rubric of war crime (like executing children) and lose its categorical singularity. The issue of punishment becomes more complex. In theory, the jurisprudence on war crime should provide the relevant legal authority. Right, but in theory war criminals are dragged before a judge even when their side wins the war. In theory.

If torture is illegal at home, subcontract it overseas. Extraordinary rendition is the process of handing suspects over to third-world dictators with the promise that they won't be tortured and the certainty that they will. If only because of the rank hypocrisy behind it, one should not extend to rendition the customary distinction between directly causing harm and merely allowing it. If anti-torture activism results only in increased rendition, what is being morally gained? Torture is barbaric; rendition is barbaric and hypocritical. It must be an integral part of the fight against torture.

M ost opponents of torture would declare the matter settled: always immoral; always illegal. They would be wrong, for neither morality nor the law can answer the question: were you to face your daughter's kidnapper, may you torture him? The answer, whatever it is, must remain unjustifiable , so as to impose upon you, and you alone, the full moral weight of your action. This is the only subtle point of this essay, so I'll begin with a gentle introduction.

There are two common objections to the TBS question itself, neither of them wise. One is that it is a trap set up by torture lovers to force a small concession from their opponents, shift the debate to "settling the price," and then gloat: "See, we agree!" Of course, it's used as a trap. But the question is legitimate, in fact necessary, and the dreaded shift is easy to avoid. The second objection is that "it never happens," so why even discuss it? This collapses on three grounds. First, the claim is unprovable. Second, if it never happens, why should you care about the moral outcome? (Do you worry about my ethical take on green Martians?) Perhaps you care out of concern for torture creep: if so, address it on its own merits. Third, the philosophical value of hypotheticals is undeniable. Yes, the field of ethics has been hard on fat men being shoved in front of trolleys, but as in mathematics these "singular" points can be the lampposts that light up the dark street. Just as the corners of a triangle tell us all there is to know about its shape, so extreme cases help us read our moral compass.

The unease that accompanies the discussion comes from elsewhere. It stems from a confusion between morals and ethical codes, ie, between moral principles and the decision processes by which we make moral choices. Morality is about right and wrong. A moral (deontological) system may include specific injunctions, "Do not kill," as well as abstract precepts, "The Golden Rule." It is preferably universal in a Kantian (negative) sense, in that it should, at the very least, not contradict its adoption by everyone else: "I may leave a restaurant without paying for my meal" cannot be a moral maxim, for its wide adoption would quickly cause all restaurants to close shop, which in turn would contradict my desire to eat out. Moral systems consist mostly of intuitive, a priori judgments, unshackled from the need for empirical validation. Lying is wrong and so is tormenting a child. These are truisms. But what do we tell a terminally ill child who asks: "Am I going to die?" We lie, of course. Are we thereby signifying that honesty is less important than compassion? Not at all. For example, most of us would agree that empathy may not always excuse perjury. Honesty and compassion are both universal moral values, but their relative ranking may vary depending on the context. Unfortunately, there is no simple rule to tell us which should prevail when. We can always follow our moral intuition. But that can be dangerous: hate, self-interest, prejudice, biases can be all too "intuitive." And we are all so good at lying to ourselves.

Far better for us to turn to an ethical code , ie, a decision procedure to convert our moral beliefs into action. To guard against egoism, we'll try to make it universal so others might want to adopt it, too. We're all familiar with ethical codes: etiquette; chivalry; just-war theory; political ideologies, etc. The conservative code, for example, tells us that the best way for government to help the poor is not to help them at all. This is so weird we might never have come up with anything like it on our own. But it meets the three criteria of an ethical code: it seeks to match our actions with our morals; it is not self-evident (if it were we wouldn't need it); and it is effective (it helps us identify whom to vote for).

The ideal ethical code would be a big handbook—infinitely long, to be precise—with, next to each possible situation, a list of moral actions to choose from. This being somewhat unwieldy, a code will look more like an "algorithm," ie, a coherent set of interconnected generalization and abstraction rules based on representative cases that mesh with our intuitions. A perfect code would have to be complete , meaning that it covers all cases, but that is unrealistic. We might hope for it to be sound , ie, never to prescribe actions that violate our moral intuitions. To fix such violations, Rawls suggested tweaking rules and intuitions back and forth until we reach some sort of stable, "reflective" equilibrium. Inevitably, an ethical code will be on occasion intractable , meaning that it may actually tell us not to do X in situation Y but we're just too dumb to figure that out by the time Y has passed. The complexity of a code must be honored. It is in fact unethical to gerrymander moral boundaries to make it easier to lead a moral life—Bush tried to do just that with his "You're with us or against us." Naturally, to adopt an ethical code is itself a moral decision. (The vigilant reader will immediately spot the self-referential implication but I'll leave that one for another day.)

It is beyond dispute that an ethical code that advises us to lie to the dying child can be sound. But can all moral dilemmas be resolved by sound ethical codes? No code can be expected to be complete and always tractable, so the only reasonable answer is no. Fine, but what about torture? A ruling cannot be derived a priori , unless perhaps one considers torture a wrong universally greater than all others, a proposition clearly untenable. So what do we do? David Luban argues on incompleteness grounds that moral systems (hence ethical codes) should not apply to TBS. [13]   I agree, but for somewhat different reasons. I plant a flag right in the middle of the TBS swamp with the sign, "No Ethical Code Here." By that, I am not simply stating the impossibility or intractability of always reaching a decision via a universal code, something of which I cannot be sure. Rather, I am decreeing it. I disallow any code for TBS not because I have to (Luban's position), but because I choose to . My rejection of an ethical code appeals to an existentialist intuition. If morality is going to be incapable of helping us decide, then our choice should engage us fully so as to avoid any rationalization. It should be the ultimate act of free will. The would-be torturer must accept full moral responsibility and be denied both alibis: "My code made me do it" and "I was confused." The latter says that even incompleteness is no excuse. Here is a quick explanation.

Considering the real-life story of a young Frenchman in the 1940s torn between his urge to fight the Germans to avenge the execution of his brother and his desire to stay with his heartbroken mother, Sartre reviewed various moral systems to highlight the difficulty of teasing ethical guidance out of them. His point was that ethical codes are dressed up as advisory devices when in fact they serve only justificatory purposes. In other words, how do we know that ethical codes aren't rationalization engines in disguise, mechanisms for evading responsibility, sophisticated dodges? This points to the exculpatory nature of an ethical code. The neat thing about being advised, you see, is that we can always blame the advisor.

Sophie is given a choice: to kill one of her two children or have both of them killed. She has no choice but to act immorally. This is not my judgment but hers; more accurately, it is an a posteriori inference from the knowledge that she'll be racked with guilt for the rest of her life. Sophie's choice falls within the world of morals but beyond the human reach of moral guidelines. The injunction, "Spare the child who..." is morally impermissible. Sophie is thus able to act in a way that, though necessarily immoral, is not ethically mistaken. No one can ever tell her, "You saved the wrong child." In fact, we so believe that no ethical code should apply that we'd be shocked to hear Sophie justify her choice by appealing to some holy book claiming that God prefers, say, older siblings. "My religion made me do it" would reek of bad faith (in the Sartrean sense of self-lying) and suggest that perhaps Sophie preferred her older child but blamed her faith instead. It is morally imperative for her to renounce any ethical code and take full responsibility for her choice—or, as an existentialist would put it, to admit that she is condemned to be free.

The kidnapping story is identical except in one key aspect: the temptation of a code. Faced with the kidnapper and the mental picture of your daughter imploring you to do everything in your power to save her, your intuition is likely to whisper in your ear, "Torture the bastard!" Unlike Sophie's, your choice may even seem entirely obvious. This intuition may help you decide but, even after integrating the moral relevance of family, it still violates the deontological constraint of treating torture as a universal moral wrong: after all, your intuition might be quite different if the "bastard" were your son and the captive girl the past killer of your daughter. To give up on an ethical code altogether may be quite difficult, in fact. But this is the only way to respect the absolute wrongness of torture. If you're going to do it, you'd better be ready to "own it" and take all the blame. In this instance, free will implies carrying out, and accepting to carry out, your own decision in the belief that you would do it again in the future. In other words, neither of these excuses is acceptable: "I was foolish"; or "I did what I thought was best but that was against my will."

Consider a variant of TBS where torturing one person prevents the torturing of two other people elsewhere. Should you do it? Basic utilitarianism of rights says yes. The danger is that moral calculus is nothing but the exercise of an ethical code, hence a rationalization. I am not saying this is not allowed to influence your decision—one cannot shield oneself from all moral calculus. I am saying that in the end you must be the only owner of your decision. You must accept the guilt for your action as the necessary consequence of your freedom and you must reject any attempt to justify your choice. What if you are ordered to torture? Assuming a moral choice is possible, ie, disobedience is not punishable by death, you should refuse to torture unless you are confident that you would give the same order—were you in a position to do so—if you also knew that you had to carry it out yourself. (Merely believing that you would give the order is not enough.)

The final verdict on torture: always wrong; always illegal; always unjustifiable.

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8.3: “The Case Against Torture,” by Alisa Soloman

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In “The Case Against Torture,” author and professor Alisa Soloman enumerates the reasons torture should never be practiced or justified in a civil society.

Click on the link to view the essay: “The Case Against Torture” by Alisa Soloman

As you read, look for the following:

• What is the author’s thesis?
• What key points does the author use to argue the thesis?
• How does the author use reasoning, research and/or examples to affirm her viewpoint?
• How does the author attempt to refute opposing arguments?

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12 “The Case Against Torture,” by Alisa Soloman

In  “The Case Against Torture,”  author and professor Alisa Soloman enumerates the reasons torture should never be practiced or justified in a civil society.

Click on the link to view the essay: “The Case Against Torture” by Alisa Soloman

As you read, look for the following:

• What is the author’s thesis?
• What key points does the author use to argue the thesis?
• How does the author use reasoning, research and/or examples to affirm her viewpoint?
• How does the author attempt to refute opposing arguments?

English Composition I Copyright © 2014 by Lumen Learning is licensed under a Creative Commons Attribution 4.0 International License , except where otherwise noted.

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80 “The Case Against Torture,” by Alisa Soloman

Kristin Shelby

In  “The Case Against Torture,”  author and professor Alisa Soloman enumerates the reasons torture should never be practiced or justified in a civil society.

Click on the link to view the essay: “The Case Against Torture” by Alisa Soloman

As you read, look for the following:

• What is the author’s thesis?
• What key points does the author use to argue the thesis?
• How does the author use reasoning, research and/or examples to affirm her viewpoint?
• How does the author attempt to refute opposing arguments?

“The Case Against Torture,” by Alisa Soloman Copyright © 2021 by Kristin Shelby is licensed under a Creative Commons Attribution 4.0 International License , except where otherwise noted.

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Argument Essay

“the case against torture,” by alisa soloman.

In  “The Case Against Torture,”  author and professor Alisa Soloman enumerates the reasons torture should never be practiced or justified in a civil society.

Click on the link to view the essay: “The Case Against Torture” by Alisa Soloman

As you read, look for the following:

• What is the author’s thesis?
• What key points does the author use to argue the thesis?
• How does the author use reasoning, research and/or examples to affirm her viewpoint?
• How does the author attempt to refute opposing arguments?
• Provided by : Lumen Learning. Located at : http://lumenlearning.com/ . License : CC BY: Attribution

Home — Essay Samples — Social Issues — Torture — Arguments For and Against the Use of Torture on Suspected Terrorist

Arguments for and Against The Use of Torture on Suspected Terrorist

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Published: Dec 11, 2018

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Introduction, counter argument, my argument.

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