Torture: A Thought Experiment        
Yannick Veilleux Le-Page is a fourth year DIS student

Political opposition to torture stems from two objections: one, that torture is immoral, and two, that torture is ineffective. The purpose of this paper is not to address either of these objections but to pose a different question: are there any circumstances in which the institutional practice of torture can be made consistent with western democracy? This essay aims to provide a striking and effective thought experiment in the moral realm, which would answer this question.

This thought experiment assumes that torture has been shown to be effective, at least in some circumstances. It follows the Alan Dershowitz model in Want to Torture? Get a Warrant. It also responds to the scenario first presented by Jean Lartéguy in which a ticking time bomb makes it imperative to obtain immediate information in order to save lives. This need is coupled with a probable cause to believe that the suspect has such information and is unwilling to reveal it. In such an instance it is conceivable that through an open domestic legal provision, a state may be permitted to use-non lethal torture with the approval of the executive branch or a Supreme Court justice, regardless of international legal prohibitions. To this model, I would add one last caveat, the need for accountability and retribution in the event a suspect is wrongfully exposed to torture.

Rights, as legal and moral entitlements, are at the heart of our social construct and are frequently used to oppose the practice of torture. However our notion of rights is constantly being reevaluated by legal philosophers, and seems to exist only within a balance of the needs of the individual against the needs of society. Consider for example the basic right to mobility, which allows citizens to move freely and choose where they want to live, do business, or travel to. As a democratic society, we are often forced to limit this mobility in order to protect the general public. Incidentally one would be hard pressed to find someone who opposes the idea of incarcerating and stripping the mobility rights of a serial rapist in order to ensure public safety, hence the ‘right’ of mobility is not inalienable.

As rights are contextualized within a society through binary opposition, our justice system accepts this notion by incarcerating individuals and removing their mobility rights. Moreover, our police forces accept the notion that no right is inalienable, even the right to life. More specifically, it is socially acceptable in our society for a police officer to use lethal force to contain and restrain individuals attacking another providing that his actions are justifiable. Thus, in the balance of rights framework, rights can be taken away on condition that a recognized and legitimate authority provides an adequate justification. In this thought experiment, the judiciary, providing maximum checks and balances, regulates the authorities’ scope of powers.

Furthermore, as is currently practiced, if one’s rights are infringed upon wrongfully, such as in the case wrongful imprisonment, the judiciary is legally obligated to award criminal injustice compensation and retribution in case of exoneration. According to this model the same would be awarded to victims of unlawful torture. This recognizes an implicit responsibility for the judiciary to use these measures only in extreme cases where the burden of proof and probable cause has been satisfied.

Additionally, given that rights are constructs that are not inalienable, on the condition that a satisfactory justification is provided, a general utilitarian calculus would justify torture if the information gathered prevents harm to the majority of the society even if at the expense of one individual or a small segment of society. If one believes that innocent citizens should have a right to life, then the act of torturing a suspect to protect them against harm is within the role of the state as the governor of the social contract and its duty to preserve the right to life of its individuals.

“Faced by an imminent threat to its survival, every state has adopted methods
of limiting and removing individual rights, including torture.”

Given that it is generally accepted that the most heinous action in Western societies is taking another’s life; once an individual is killed, he ceases to exist as an active part of society. Despite how repulsive the thought of killing someone is, in Western society it is often seen as an acceptable tool for the state. As demonstrated above, we generally accept that police officers have the discretion to use lethal force against a gunman in a public building. In this example, the legal and moral culpability lies exclusively with the gunman. In the instance of organized terrorism, the suspect who provided the logistical support and has information to prevent an attack shares the same moral culpability as the operative who detonates a bomb. Therefore, the same justification that would allow police officers to use lethal force on a gunman can be applied to justify the use of torture by the state. Furthermore, Western liberal democracies have declared war and killed people simply for expediency and national interest, if, for example, it is in their national interest to intervene in or against another state on behalf of anonymous 'others'. This is the essence of just war theory and the current mission in Afghanistan; NATO is intervening on behalf of the rights of others. This is completely analogous to the model of conditional rather then inalienable rights. Thus, the requirements to establish grounds to justify killing people to protect the rights of others are quite low and torture, being less heinous than killing or murder, it follows by transitivity that torture is more justifiable than the act of war.

“Thus, in the balance of rights framework, rights can be taken away on condition that a recognized and legitimate authority provides an adequate justification.”

I would also argue that bringing torture into the fold would prove to be highly positive. Faced by an imminent threat to its survival, every state has adopted methods of limiting and removing individual rights, including torture. The question is whether this was administrated legally by the state or whether it was done in another way that is not monitored, and offers no accountability and retribution in the event a suspect is wrongfully exposed to torture. Unfortunately, most have no doubt that if a ticking time bomb threat arose and torture remained criminalized, the authorities would still do whatever they deemed necessary to prevent the loss of innocent lives. This model allows the state to implement a series of legal checks to insure the protection of its citizens and also its law enforcement officers. Even if the authorities use torture regardless, this model rests on the assumption that legal checks are sufficient to provide protection.

In closing, it should be recognized that a ticking time bomb scenario is extremely rare. That is why legal checks are necessary to protect innocent people from torture. Currently, the courts are given considerable power to be used in extreme situations and are relied upon by society to render a fair and balanced decision as a separate and independent branch of government.  The rights model proposed in this thought experiment recognizes that no rights are absolute and when it is necessary for a state to violate individual rights; the state has an obligation to protect its civilians, within its legal means. -R