Is Torture Ever Warranted? Maybe

Bob Jones
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Wednesday - January 28, 2009
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An artist’s rendering of waterboarding

We have a new CIA director whose expertise is budgeting rather than intelligence gathering, and President Obama promises to “put a clear end to torture” by the agency.

What does that portend for fending off those who would kill us?

Torture is considered a morally bankrupt tactic for a highly civilized country. But then, so is killing.

We don’t all see capital punishment or wartime intentional and accidental killing as an absolute moral wrong, so how could torture be that since torture is a lesser thing than death?


I’m able to accept a partition there because the death penalty and warfare are institutionalized acts while torture still is not - at least not officially in this country.

If we only had to make simplistic judgments on the morality of torture it would be a nobrainer. But ...

Suppose we had captured one of the 9/11 hijackers on 9/10, knew something horrific was up, but not exactly what? Would you have okayed torture to force a confession that would have saved those lives?

Noted constitutional lawyer Alan Dershowitz has argued for torture warrants in extreme emergencies. They’d be issued much like a search warrant or wiretap case. Ah, but a wrongful house search or phone tap won’t do the damage of a wrongful torture warrant, will it?

1500s Italian Inquisition water-boarding (Frans Hals Museum)

Another argument, from Hoover Research fellow Tibor Machan, is that that torture can in some extreme emergencies be morally justified, but ought never be legalized. It would be quietly employed at times.

The down side there is that once it gets a foothold, it tends to grow. Critics point out how tolerance made very bad things happen at Abu Ghraib prison, Guantanamo Bay and within the Israeli and Arab intelligence services.

I tend to like the warrant system, but that says there’s time to have a hearing or some discussion on a high official level. There won’t always be time.

So we have to live with the practicalities. There will be incidents of torture. They’ll likely never be made legal. If no one tells, that’s that. If they do, then a court will have to decide if the means and the end justify a “self-defense” verdict. Don’t punish for torture that elicited life-saving information; do punish when it did not and the torturer should have reasonably suspected it would not.

Don’t outlaw everything; leave some wiggle room for the emergencies. Always leave some wiggle room in your moral judgments. Very little in this word is absolute.

I’m one of those leery of “customary international law” as a measuring stick for what we do and don’t do.

I read our Constitution as applying exclusively inwardly, so only to American citizens and only on American territory. I recognize treaties such as the Law of the Sea and the Geneva Convention, but favor wiggle-out room for un-treatied or unconventioned matters, even if it’s been customary.

So I don’t have a legal problem with us arresting and holding suspected terrorists or combatants wherever they are found for disposal as our courts may decide.

But here’s the rub in reverse. If some international court decided we had violated some customary law by invading Iraq or killing its citizens, do you think we’d turn over George Bush for trial?

Not a chance.

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