Torture in theory
François Marie Arouet was born in 1694 when the Old Regime seemed impervious to change. Writing under the name Voltaire, Arouet was an important figure in the development of modern Western ideas about government and justice.
Voltaire’s mantra throughout his long life was the phrase “Écrasez l’infâme”. “Wipe out this infamy - just erase it entirely.” One infamy Voltaire had in mind was the government practice of torture in France.
One of the cases that most profoundly disturbed Voltaire was the brutal execution of the regicide Damiens. Michel Foucault wrote about this event, and used it as emblematic of the medieval world. Under the ancien régime, the power of the state was absolute, exercised through public spectacles and private terrors. Torture was a way of demonstrating that spectacular power.
But perhaps we have written off the ancien régime too quickly. Earlier this year, Professor Mirko Bagaric and Julie Clarke of Deakin University Law School argued that torture is a “permissible” and “moral” action in certain circumstances. Peter Faris, one-time head of the now defunct National Crime Authority, supported the call. Government sanctioned torture is back on the agenda.
This issue is by no means hypothetical. The Bush administration insists on its right to act as it sees fit in the “war on terror”, including the use of torture, and unconstrained by either domestic or international law. The Working Group Report on Detainee Interrogations in the Global War on Terrorism (pdf file 6.62MB) argues that the president’s “ultimate authority” in a time of self-proclaimed and self-defined war is not inhibited by any laws, even against torture. Alberto Gonzales advised that the “new paradigm” of counter-terrorism “renders obsolete Geneva [Convention]’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions”.
Bagaric and Clarke ignore this social context. Torture, they say, is only justifiable where “torturing a wrongdoer... is the only means, due to the immediacy of the situation, to save the life of an innocent person”. Indeed, they allow that no such circumstance may ever arise. Thus, their argument is presented as if it were a harmless thought experiment. It is not. The use of arguments like those of Bagaric and Clarke to justify ever-expanding practices of torture is not a possibility but a fact, engineered, according to US government sources, as part of “a calculated effort to create an atmosphere of legal ambiguity”. These Australian academics are seriously implicated in the creation of that atmosphere.
Even if we take Bagaric and Clarke’s very modest proposal for torture at face value, it is implicated in the real-world practices they disavow. Torture by its very nature deals with uncertainty: ignorance is the problem that it claims to solve by violence. Yet torture produces such exceptionally unreliable information that it is thought to be largely useless. All Western legal systems acknowledge this by excluding as unreliable the fruit of torture. But the authors provide us with no evidence to support their odd assumption that torture produces enough reliable information, enough of the time, to justify it.
Now let us look at the problem of ignorance and uncertainty from the torturer’s point of view. A licenced torturer cannot know that a supposed terrorist (for example) is the only way to locate a bomb; or that there is a bomb; or that he will tell the truth; or even that he is a terrorist. When exactly do we believe what the victim is telling us when the justification of torture is precisely that we only believe them when they tell us what we want to know, without already knowing it? There is a paradox here which must lead to the kind of grey areas or “slippery slope” that Bagaric and Clarke attempt unsuccessfully to exclude. The authors explicitly concede that their modest proposal may not lead to torture that saves a life. But they don’t tell you the logical corollary: it will lead to torture, and therefore by their own reasoning it will lead to torture that does not save a life.
Torture in practice
It is duplicitous to describe torture, as Bagaric and Clarke do, as “inflicting a relatively small level of harm on a wrongdoer”. It is appalling that these lawyers trivialise the very practice they advocate. How effective would a regulated, prescribed and “relatively small” dose of torture be? Many of us can tolerate a finite dose of pain, even if it is severe. The power of torture comes instead from the promise that the pain will never end until you talk. It is a logical contradiction to imagine that torture can be regulated because it is part of its essence that the victim is powerless and that resistance is futile. Torture gets people to talk (not, of course, to tell the truth, but certainly to talk) if and only if the torturer is sovereign.
Neither can we limit our analysis to one individual. Torture is used to terrorise whole communities. Just like Damiens, torture demonstrates the random and unstoppable power of the state to destroy lives, and consequently it instils an intense sense of vulnerability in whole populations. Ultimately the powerlessness it communicates shifts from passivity to rage. The turning point in the lives of many Al-Qaida operatives was their imprisonment and torture in Egyptian, Syrian and other Middle Eastern prisons: this same Egypt to which the United States still “renders” suspects in order to soften them up. This is one reason that there is a growing suspicion that the prisoners in Guantanamo Bay - part of the “gulag of our times” - can never now be released. Torture produces terrorists.
For the sake of argument let us look a little closer at the ways in which Bagaric and Clarke attempt to defend an entitlement to torture. According to Bagaric and Clarke, the illegality of torture has only driven it “beneath the radar screen of accountability;” legalisation might “reduce the instances of it.” But our societies are not without experience of legal torture. Was there less of it then? Were torture done in public, were it supervised by a medical practitioner in a hygienic environment, were it made respectable - would any of this make torture better? Once again Voltaire comes to mind: “If we believe absurdities, we shall commit atrocities.”
The centre-piece of Bagaric and Clarke’s defence argues by analogy to “the right of self-defence, which of course extends to the defence of another”. Just as we are entitled to respond with violence to a murderous attack, they say, we are entitled to protect others: if the only way to protect them is by torturing somebody for information, then torture must be legitimate too. But the analogy falls down in at least three ways. First, the principle of self-defence recognises a reality: when it’s “him or me” a law that said I could not respond to an attacker would be simply unenforceable. Here the violence of torture is a choice deliberately made and carried out, and not purely responsive.
This edited version has been compiled with the assistance of Airina Rodriguez, a student in the Faculty of Law at McGill University. First published in The Deakin Law Review as "Another modest proposal".