In The End of Faith, I argue that competing religious doctrines have divided our world into separate moral communities and that these divisions have become a continual source of human violence. My purpose in writing the book was to offer a way of thinking about our world that would render certain forms of conflict quite literally unthinkable.
In one section of the book (pp. 192−199), I briefly discuss the ethics of torture and collateral damage in times of war, arguing that collateral damage is worse than torture across the board. Rather than appreciate just how bad I think collateral damage is in ethical terms, some readers have mistakenly concluded that I take a cavalier attitude toward the practice of torture. I do not. Nevertheless, there are extreme circumstances in which I believe that practices like ”water-boarding" may be not only ethically justifiable, but ethically necessary. This is not the same as saying that they should be legal (Crimes such as trespassing and theft may sometimes be ethically necessary, though everyone has an interest in keeping them illegal).
I am not alone in thinking that there are potential circumstances in which the use of torture would be ethically justifiable. The liberal Senator Charles Schumer has publicly stated that most U.S. senators would support torture to find out the location of a ticking time bomb. Such scenarios have been widely criticized as unrealistic. But realism is not the point of these thought experiments. The point is that unless your argument rules out torture in idealized cases, you don't have a categorical argument against torture. As nuclear and biological terrorism become increasingly possible, it is in everyone's interest for men and women of goodwill to determine what should be done if a person appears to have operational knowledge of an imminent atrocity (and may even claim to possess such knowledge), but won't otherwise talk about it.
My argument for the limited use of coercive interrogation (”torture" by another name) is essentially this: If you think it is ever justifiable to drop bombs in an attempt to kill a man like Osama bin Laden (and thereby risk killing and maiming innocent men, women, and children), you should think it may sometimes be justifiable to water-board a man like Osama bin Laden (and risk abusing someone who just happens to look like him). It seems to me that however one compares the practices of water-boarding high-level terrorists and dropping bombs, dropping bombs always comes out looking worse in ethical terms. And yet, most people tacitly accept the practice of modern warfare while considering it taboo to even speak about the possibility of practicing torture. It is important to point out that my argument for the restricted use of torture does not make a travesty like Abu Ghraib look any less sadistic or stupid. I consider our mistreatment of prisoners at Abu Ghraib to be patently unethical. I also think it was one of the most damaging blunders in the last century of U.S. foreign policy. Nor have I ever seen the wisdom or necessity of denying proper legal counsel (and access to evidence) to prisoners held at Guantánamo Bay. Indeed, I consider much of what occurred under Bush and Cheney—the routine abuse of ordinary prisoners, the practice of ”extraordinary rendition," etc.—to be a terrible stain upon our nation.
Some people believe that while collateral damage may be worse than torture, they are independent evils, and one problem sheds no light upon the other. However, they are not independent in principle. In fact, it is easy to see how information gained through torture might mitigate the risk of collateral damage. If one found oneself with an apparent choice between torturing a known terrorist and bombing civilians, torturing the terrorist should seem like the more ethical option. But most people's intuitions seem to run the other way. In fact, very few critics of my collateral-damage argument even acknowledge how strangely asymmetrical our worries about torture and collateral damage are. A conversation about the ethics of torture can scarcely be had, and yet collateral damage is often reported in the context of a ”successful" military operation as though it posed no ethical problem whatsoever. The case of Baitullah Mehsud, killed along with 12 others (including his wife and mother-in-law), is a perfect example: Had his wife been water-boarded in order to obtain the relevant intelligence, rather than merely annihilated by a missile, we can be sure that torrents of outrage would have ensued.
It seems, in fact, that many people do not understand what the phrase ”collateral damage" signifies, and thus they imagine that I have drawn a false analogy. Most assume that my analogy fails because torture is the intentional infliction of guaranteed suffering, whereas collateral damage is the unintentional imposition of possible suffering (or death). Apples and oranges.
But this isn't true. We often drop bombs knowing that innocent people will be killed or horribly injured by them. We target buildings in which combatants are hiding, knowing that noncombatants are also in those buildings, or standing too close to escape destruction. And when innocent people are killed or injured—when children are burned over most of their bodies and live to suffer interminable pain and horrible disfigurement—our leaders accept this as the cost of doing business in a time of war. Many people oppose specific wars, of course—such as the war in Iraq—but no public figure has been vilified for accepting collateral damage in a war that is deemed just. And yet, anyone who would defend the water-boarding of a terrorist like Khalid Sheikh Muhammad will reap a whirlwind of public criticism. This makes no moral sense.
Again, which is worse: water-boarding a terrorist or killing/maiming him? Which is worse, water-boarding an innocent person or killing/maiming him? There are journalists who have volunteered to be water-boarded. Where are the journalists who have volunteered to have a 5000-pound bomb dropped on their homes with their families inside?
It is widely claimed that torture ”does not work"—that it produces unreliable information, implicates innocent people, etc. As I argue in The End of Faith, this line of defense does not resolve the underlying ethical dilemma. The claim that torture never works, or that it always produces bad information, is incredible (and well known to be false). There are cases in which the mere threat of torture has worked. One can easily imagine situations in which even a very low probability of getting useful information through torture would seem to justify it—the looming threat of nuclear terrorism being the most obvious case. It is decidedly unhelpful that those who claim to know that torture is ”always wrong" never seem to envision the circumstances in which good people would be tempted to use it. Critics of my collateral-damage argument always ignore the hard case: when the person in custody is known to have been involved in terrible acts of violence and when the threat of further atrocities is imminent. If you think such situations never arise, consider what it might be like to capture a high-ranking member of al Qaeda along with several accomplices and their computers. The possibility that such a person might really be ”innocent" or that he could ”just say anything" to mislead his interrogators begins to seem less of a concern. Such captures bring us closer to a ”ticking-bomb" scenario than many people are willing to admit.
Although I think that torture should remain illegal, it is not clear that having a torture provision in our laws would create as slippery a slope as many people imagine. We have a capital punishment provision, but it has not led to our killing prisoners at random because we can't control ourselves. While I am strongly opposed to capital punishment, I can readily concede that our executing about five people every month hasn't led to total moral chaos. Perhaps a rule regarding torture could be applied with equal restraint.
It seems probable, however, that any legal use of torture would have unacceptable consequences. In light of this concern, the best strategy I have heard comes from Mark Bowden in his Atlantic Monthly article ”The Dark Art of Interrogation." Bowden recommends that we keep torture illegal and maintain a policy of not torturing anybody for any reason—but our interrogators should know that there are certain circumstances in which it would be ethical to break the law. Indeed, there are circumstances in which you would have to be a monster not to break the law. If an interrogator found himself in such a circumstance and broke the law, there would be little will to prosecute him (and interrogators would know this). If he broke the law Abu Ghraib-style, he will go to prison for a very long time (and interrogators would know this too). At the moment, this seems like the most reasonable policy to me.
The best case against ”ticking-bomb" arguments appears in David Luban's article, ”Liberalism, Torture, and the Ticking Bomb," published in the Virginia Law Review. (I have posted a PDF here.) Luban relies on a few questionable assumptions, however. And he does not actually provide an ethical argument against torture in the ticking-bomb case; he offers a pragmatic argument against our instituting a policy allowing torture in such cases. There is absolutely nothing in Luban's argument that rules out the following law:
We will not torture anyone under any circumstances unless we are certain, beyond all reasonable doubt, that the person in our custody has operational knowledge of an imminent act of nuclear terrorism.
It seems to me that unless one can produce an ethical argument against torturing such a person, one does not have an argument against the use of torture in principle. Of course, my discussion of torture in The End of Faith (and on this page) addresses only the ethics of torture—not the practical difficulties of implementing a policy based on the ethics.
Many readers have found my views on this topic deeply unsettling. (For what it's worth, I do too. It would be much easier to simply be ”against torture" across the board and end the discussion.) I have invited readers, both publicly and privately, to produce an ethical argument that takes into account the realities of our world—our daily acceptance of collateral damage, the real possibility of nuclear terrorism, etc.—and yet rules out a practice like water-boarding in all conceivable circumstances. No one, to my knowledge, has done this. And yet, most people continue to speak and write as though a knockdown argument against torture in all circumstances were readily available. I consider it to be one of the more dangerous ironies of liberal discourse that merely discussing the possibility of torturing a man like Osama bin Laden provokes more outrage than the maiming and murder of children ever does. Until someone actually points out what is wrong with the collateral-damage argument presented in The End of Faith, I will continue to believe that its critics are just not thinking clearly about the reality of human suffering.
(For what it's worth, I have since discovered that the Stanford Encyclopedia of Philosophy basically takes the same view.)