Washington Post and syndicated columnist Richard Cohen has an interesting take on torture and expresses a view that needs to be heard more often in the debate that too often focuses on utilitarianism -- let's not torture anybody, but let's not pretend that such restraint will somehow makes America safer:
America should repudiate torture not because it is always ineffective -- nothing is always anything -- or because others loathe it but because it degrades us and runs counter to our national values. It is a statement of principle, somewhat similar to why we do not tap all phones or stop and frisk everyone under the age of 28. Those measures would certainly reduce crime, but they are abhorrent to us.
But it is important to understand that abolishing torture will not make us safer. Terrorists do not give a damn about our morality, our moral authority or what one columnist called "our moral compass." George Bush was certainly disliked in much of the world, but the Sept. 11 attacks were planned while Bill Clinton was in office, and he offended no one with the possible exception of the Christian right. Indeed, he went around the world apologizing for America's misdeeds -- slavery, in particular. No terrorist turned back as a result.
If Obama thinks the world will respond to his new torture policy, he is seriously misguided. Indeed, he has made things a bit easier for terrorists who now know what will not happen to them if they get caught. And by waffling over whether he will entertain the prosecution of Bush-era Justice Department lawyers (and possibly CIA interrogators as well), he has shown agents in the field that he is behind them, oh, about 62 percent of the time.
I would probably start at a slightly different point on the utilitarian issue than Cohen but end up in about the same place: 1) If torture is not effective in getting the desired results, its use would merely be the sadistic inflicting of pain for no reason and cannot be justified. 2) Torture is most likely to be effective if the subject has reason to believe the end result might be death. 3) That would never be the end result of torture by Americans, and everybody knows it. That, in the face of 1, 2 and 3, there could still be "the squalid efforts of legal toadies to justify the unjustifiable" is not as surprising as it should be.
But what if torture could be shown to be effective more often than not? Well, that's where the moral dilemma lies, isn't it? For a good thrashing of the subject -- people actually arguing with each other, and politely -- check out the online debate at the Federalist Society. I liked this, from Douglas Kmiec, professor of constitutional law at Pepperdine Law School:
More than once in the last few days I have heard the former vice president or others advocate that President Obama release other classified materials in order to demonstrate the effectiveness of aggressive interrogation techniques. The ethical and legal assumptions under this line of argument will be troubling to many.
If torture has been declared an intrinsically evil act (i.e., wrong regardless of context), which I take it is the point of the United Nations convention which we signed, ratified, and incorporated into our criminal law, what exactly is the point of the former vice president's argument--unless he is making Lincoln's emergency argument into some kind of far flung general prerogative power.
The argument from utility at least vis-à-vis torture is pernicious because it seems to be a fulsome denial of law and the ethical principles settled beneath it. The best case for such utilitarian consideration to carry the day would be obtaining indispensable and otherwise unattainable actionable intelligence. I've noted in an earlier post, this factual indispensability and unattainability is highly disputed. What I wish to raise here is what would surely trouble an ethicist--namely, constructing a justification for what the world community has called the employ of intrinsically evil means.
Perhaps that United nations convention is too vague (as argued elsewhere in the debate), which would have been a good reason not to sign and ratify it and incorporate it into our criminal law. But we did. And when we want to make a case that we're fighting the "intrinsic evil" of militant fundamentalism, we'd better not take our eyes off the moral high ground.