is torture ever acceptable essay

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Torture pros and cons: Is torture ever acceptable?

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Torture is still practised, justified or tolerated by many governments. President Trump has brought this discussion back to the political agenda. Find out more about the potential advantages and disadvantages of torture and join our poll and debate (see below).

Is torture ever acceptable?

Torture is the act of deliberately hurting someone, physically or psychologically, as a punishment or as means of obtaining some information . Although in decline after the Second World War, torture continues to be used not only in dictatorships but also in some democracies. Some claim that torture may be a necessary evil to guarantee peace and security. But many doubt of the real effectiveness of torture. Following an US Senate report on the CIA torture program  the Obama administration introduced reforms to abandon the use of torture. However, Donald Trump , during his first week in office declared that  torture is effective  ( "absolutely, I feel it works" ). Many human right advocates are afraid that this means the return of practices such as waterboarding. The "enhanced" techniques of interrogation used to gather intelligence from  prisoners by some government agencies and organizations, such as the CIA, are questionable from an ethical  and democratic point of view.

From a consequentialist ethical angle these acts of "enhanced interrogation" or torture are justified on the basis of saving lives. Torturing is against the law  in most countries but some utilitarians would claim that if the overall harm prevented is lower than that caused to the suspected criminal, then it is worth it. In the context of war and counter terrorism some countries allow the abuse of prisoners as a means to prevent attacks or locate high profile targets. In this case the welfare and protection of the country (many) legitimizes the harm done to one or few.

However, from a deontological perspective , it can be argued that torture is an intrinsically morally repugnant act that violates human and civil rights . Thus, torture conflics with some of the core principles that underpins our democratic systems. 

Watch these videos providing opposing view on whether turture can ever be justified:

Torture pros and cons

We summarize some of the most commonly cited advantages and disadvantages of the utilization of torture techniques such as waterboarding to extract information:

• Torture can be sometimes the only way to extract information from suspect criminals. Some terrorist or members of organized crime gangs are trained not to reveal information.
• Torture can speed up interrogation processes. This could essential in cases when there is little time to prevent an attack.
• Some torture techniques, such as waterboarding, do not entail long term physical consequences for the prisoner.
• Thanks to torture, sometimes it is possible to foil terror attacks and save the lives of many. The harm caused to one or few people could prevent much greater harm to society.
• Some terrorist and criminal groups use extremely brutal methods to torture and kill their victims. Therefore, comparatively speaking, the most commonly used torture methods used by police and intelligence services are not that cruel.
• From a retributivist perspective, the damage that torture causes to some criminals can be justified as a deserved punishment.
• The use of torture by government may have a deterrent effect upon the comission of crime.
• Tortured people may still withhold the valid information they know or reveal misleading information. There is no conclusive evidence that torture has been the key to foiling terrorist attacks or capturing or killing terrorist leaders. For example, the US senate investigation did not find that the use of waterboarding was crucial in the killing of Bin Laden.
• Often innocent people or people who do not have the information sought are tortured.
• Torture can have long term physical and psychological consequences for those who are tortured.
• Agents torturing suspects may also develop psychological traumas.
• Sometimes torture goes beyond the search for information and becomes a sort of cruel entertainment for torturers. People may put into practice some sadistic tendencies on those they are simply expected to question.
• Torture is illegal in most countries and the International Criminal Court class torture as a crime against humanity.
• The use of torture by governments can be use as propaganda by terrorists.
• Torture is unethical. How can we expect citizens to act according to the laws and commonly accepted moral standards when the government does not respect them?

Emerging questions: Should governments, in some cases, use torture to save lives or prevent further harm to their citizens? Is torture justified? Is the use of mass surveillance and    torture programs   justifiable in the context of the "war on terror"? Does torture work? Does it really save lives? Does the use of torture defeat the very foundations of the systems we want to preserve?

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The New York Times

Opinionator | can torture ever be moral.

Can Torture Ever Be Moral?

The Stone is a forum for contemporary philosophers and other thinkers on issues both timely and timeless.

The recent Senate report on the Central Intelligence Agency’s use of torture has been the focus of a national debate about whether torture is ever permissible. This interview, the second in a series on political topics, discusses philosophical ideas that underlie this debate.  My interviewee is Jeff McMahan, White’s Professor of Moral Philosophy at the University of Oxford. He is the author of “The Ethics of Killing.” — Gary Gutting

Gary Gutting: What’s your overall view on the morality of torture?

Jeff McMahan: I think that torture is almost always morally wrong and that, for moral reasons, it ought to be prohibited absolutely in law. Torture has been used to extract confessions, to terrorize people associated with the victims, to punish presumed wrongdoers, and even to gratify and amuse sadists and bullies. These uses are always morally wrong. The only use of torture that has any chance of being morally justified is to gain important information. But even when torture is used to gain information, the torturers are usually wrongdoers seeking information that will help them to achieve their unjust aims. And even when those seeking information have just aims, their victims are often innocent, or lack the information sought, or are sufficiently strong-willed to mislead their torturers, so that the torture is ineffective or counterproductive. Still, both those pursuing unjust aims and those pursuing just aims will continue to be tempted to engage in torture if they can do so with impunity. Hence, torture has been widely practiced, though its use has almost invariably been wrong. This means that the overriding goal of the law ought to be to deter the wrongful use of torture, even at the cost of forbidding the use of torture in those rare cases in which it might be morally justified. The legal prohibition ought therefore to be absolute; for those who think that torture would be advantageous to them will always be tempted to try to exploit any legal permission to use it.

Torture can be morally justifiable, and even obligatory, when it is wholly defensive – for example, when torturing a wrongdoer would prevent him from seriously harming innocent people.

G.G. : But you do agree that torture can, in extreme cases, be moral. Why do you reject the absolute view that any instance of torture is immoral?

J.M. : Torture can be morally justifiable, and even obligatory, when it is wholly defensive – for example, when torturing a wrongdoer would prevent him from seriously harming innocent people. It could do that by forcing a person to reveal the location where he has planted a bomb, or hidden a hostage who will die if not found. It can be morally justifiable to kill a person to prevent him from detonating a bomb that will kill innocent people, or to prevent him from killing an innocent hostage. Since being killed is generally worse than being tortured, it should therefore be justifiable to torture a person to prevent him from killing innocent people. In cases in which torture is defensive in this way, the person tortured is not wronged. Indeed, he could avoid the torture simply by doing what he is morally required to do anyway – namely, disclose the location of the bomb or hostage.

G.G. : Do you worry that even saying that torture can be moral will provide an excuse for immoral torture?

J.M. : Yes, very much. The philosopher Henry Shue has a story of being thanked for his influential 1978 article [“Torture,” Philosophy and Public Affairs 7, no. 2 (1978): 124-43] by a pair of American agents who had tortured people. The article had argued vigorously against torture but conceded at the end that the moral prohibition of torture is not absolute. The agents were grateful for the concession, as that made them feel they could engage in torture without doing wrong. I think this is the explanation of why many people who aren’t absolutists about any other moral issue say they are absolutists about torture. They rightly want to avoid giving any aid or comfort to those who seek to justify torture in the circumstances in which it is actually practiced. But there is a dilemma here, for it can seem morally obtuse, and therefore discrediting, to deny that torture is permissible in those cases in which it obviously is permissible – for example, when it would in fact force a kidnapper to reveal the location of hostages who will otherwise die.

G.G. : Should we treat cases of justified torture the way some say we should treat cases of justified civil disobedience: You may, in extraordinary cases, have a moral right to disobey the law, but then you have to face the legal consequences?

J.M. : I think so. To effectively deter wrongful torture, the law should make anyone contemplating torture feel that if he does so he will be sacrificing himself for the sake of morality. It may indeed be best for the law not even to allow a necessity defense for torture, though I don’t think it should make harsh penalties mandatory. It should be possible for courts to exercise leniency in sentencing if there are cases in which people have engaged in torture with clear moral justification. But potential torturers should not be allowed to think that they can evade punishment through statutory loopholes.

In planting the bomb or capturing the hostage, the terrorist makes himself morally liable to be harmed as a means of preventing him from harming innocent people.

G.G. : We’ve been using the term “torture” without defining it. Is it enough to work with clear cases of what is and of what is not torture (locking a prisoner in a cell versus beating him) or do moralists have to get into fine points about exactly what constitutes torture?

J.M. : Both moralists and legal theorists must go into the fine details. There are many reasons why paradigm instances of torture are objectionable: the sheer awfulness of suffering; the humiliation, terror, and dehumanization; the psychological scarring; the various forms of betrayal – of others, one’s ideals, and oneself – and so on. The moral evaluation of torture in a particular instance may depend on which elements are present and to what degree. Torture is not all or nothing: Some instances are worse than others, and at the lower end of the spectrum torture shades gradually into forms of harming that are horrible but do not rise quite to the level of torture. It is one of the problems of the absolutist view of torture that it has to identify some threshold on the scale that measures the elements of torture, such as suffering, and then claim that nothing, not even the prevention of a billion murders, can justify the infliction of that degree of harm, even on a wrongdoer. But the view does not absolutely prohibit the infliction of the highest degree of harm below the threshold. It has to concede that the infliction of that degree of harm can be permissible, even to prevent harms far less bad than the murder of a billion people. The idea that there is such a threshold is wholly implausible.

G.G. : Why do the absolutists have to specify a precise point at which the infliction of pain becomes torture? Why can’t they admit that there are gray areas but still maintain that, in clear cases, torture is always immoral?

J.M. : If you claim that a certain type of act is wrong no matter what the consequences, I think you must specify the precise conditions for an act to be of that sort. But even if absolutists can claim that there are gray areas in which it is indeterminate whether an act constitutes torture, or in which we are uncertain whether the act is torture, they still have to say whether an act that is in the gray area can be permissible. If there is uncertainty, there is a chance that in fact nothing could possibly justify the act. A principle of reasonable caution suggests that we should treat such an act as absolutely prohibited. But if that is so, we have to know at what exact point the gray area begins and claim that all acts at or beyond that point may not be done, whatever the consequences. Or, if the absolutist accepts that acts in the gray area can be permissible, we then need to know exactly where the gray area ends and absolutely prohibited acts begin. So the suggestion that there might be a gray area does not solve the problem of the precise threshold but merely pushes it back a bit.

G.G. : Absolutists might object that you’re just assuming that actions should be judged by their consequences, whereas they think at least some actions are immoral in themselves, apart from their consequences. Is this just a case of conflicting basic moral intuitions, with no way of resolving the issue?

J.M. : I don’t think so. Thus far I have criticized absolutism about torture on the ground that it has to draw a sharp line between acts that are prohibited, regardless of their consequences, and acts that may or may not be prohibited depending partly on their consequences. But I don’t think that only the consequences matter. I have said that it might be permissible to torture a terrorist to force him to reveal the location of a bomb or a hostage, but that would be quite different from torturing the terrorist’s child as a means of extracting the same information. In planting the bomb or capturing the hostage, the terrorist makes himself morally liable to be harmed as a means of preventing him from harming innocent people. But his child has done nothing to become liable to be tortured as a means of saving the parent’s potential victims.

The most important objection to the claim that all torture is absolutely prohibited is that it does not distinguish between the torture of wrongdoers and the torture of the innocent. The British philosopher Elizabeth Anscombe was a moral absolutist but she appreciated that absolute prohibitions have to take account of whether intended victims are innocent or non-innocent. Thus, while she believed that the intentional killing of innocent people is absolutely prohibited, she was scornful of absolute pacifism, which, she argued, “teaches people to make no distinction between the shedding of innocent blood and the shedding of any human blood…and in this way…has corrupted enormous numbers of people.” Absolutists about torture, who say that it can never be justified, make the same mistake. As I indicated earlier, because most of them believe that it can be permissible to kill a person to prevent him from committing murder and also that it can be less bad for a person to be tortured than to be killed, they should concede that it can be permissible to torture a person to prevent him from committing murder. Apart from the fact that killing is usually worse, the only significant difference between killing in defense of the innocent and torturing in defense of the innocent is that torture can only very, very rarely be used defensively.

More From The Stone

Read previous contributions to this series.

G.G. : As a moral philosopher, how do you view the recent controversies about the Senate report on the C.I.A.’s use of torture?

J.M. : It is reasonable to demand that a democratic government act in ways that it can justify to its citizens. The Bush administration lied to its citizens about its torture policy, which was in violation of international law and therefore also in violation of American law, which treats international law as the law of the land. Members of that administration have not shown that any of the many instances of torture in which Americans were involved were morally justified in the way I have suggested that they might in principle be justified. Apologists for torture also cannot point to any terrorist atrocities since Obama abolished the torture policy that might have been prevented had the policy been continued. Given that the policy has been abandoned without any apparent ill effects, there seems to be no reason of national security to continue to conceal facts about the Bush administration’s torture practices. There are, moreover, democratic reasons for exposing them – for example, to deter future administrations from acting in similar ways and to help to dispel illusions that citizens have about the honesty and trustworthiness of their government. Some defenders of torture are outraged by the exposure of the Bush administration’s clandestine criminal acts but not by the fact that these acts were committed. That attitude seems to me fundamentally anti-democratic.

This interview was conducted by email and edited. Other installments in this series can be read here .

Gary Gutting is a professor of philosophy at the University of Notre Dame, and an editor of Notre Dame Philosophical Reviews . He is the author of, most recently, “Thinking the Impossible: French Philosophy since 1960,” and writes regularly for The Stone.

Follow The New York Times Opinion section on Facebook and on Twitter , and sign up for the Opinion Today newsletter .

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Safra Center speaker, former fellow, says perhaps

In 2004, German police captured a man they believed had kidnapped a young boy. They questioned him for two days, and then, fearing for the child’s safety, a senior officer authorized an interrogator to use pain, if necessary, to get information.

After being told what was being planned but before any force was used, the suspect confessed and told police he had killed the boy and where they could find the body.

Though they had gotten the desperately needed information without resorting to violence, both the superior and the interrogator were charged with a crime under the German constitution’s absolute ban on torture. Rather than going to jail, however, the two were let off with a fine after the court found “massive mitigating circumstances.”

German courts, even faced with a constitutional prohibition, found that in this case, torture was “quasi-acceptable,” according to University of Texas Law Professor Sanford Levinson, otherwise the two would have gone to jail.

That’s just one example of the “ticking time bomb” situation where police, military, or other government personnel are faced with a desperate need for information to save lives, Levinson said. Multiply the German child’s life by a thousand, or several thousand, and you have the national security situation in the United States, where the public and policy debate over torture is raging.

Levinson, a former fellow at the Safra Foundation Center for Ethics, used the German case to help illustrate the conundrum that torture presents ethicists, policymakers, and ordinary people who are concerned about the issue.

Levinson spoke Thursday (Oct. 26) at the John F. Kennedy School of Government’s Starr Auditorium. Safra Center Director Dennis Thompson said that as a way to mark its 20th anniversary this year, the center is inviting former fellows to return and speak during its lecture series.

Thompson, Whitehead Professor of Political Philosophy in the Kennedy School and in the Faculty of Arts and Sciences, praised Levinson’s views on the U.S. Constitution as often going against prevailing views, but being widely respected nonetheless.

Levinson’s talk drew from a variety of sources, but he concluded that, despite his inclination to think an absolute ban on torture might be best, he still believes there will be situations in which governments must resort to torture for a larger public good.

One problem with banning torture, he said, is that in doing so, those writing the laws must define what torture is. Once that is done, he said, it immediately legitimizes techniques that may be very close, but that don’t fit the legal definition. It also may legitimize actions that are as bad as those banned, but are not on the list.

If torture is not to be banned, then the country needs to set up a system where it is regulated so that it doesn’t become widespread. One way of doing that would be for the president to authorize its use, but to then become responsible – and liable for punishment – should that specific case later be deemed unacceptable.

Either way, Levinson said, the nation’s lawmakers need to wade into this difficult territory.

Levinson compared torture with slavery – citing the Dred Scott case – and warfare. Like slavery, he said, torture is abhorrent to our society. Also like slavery, torture is largely about control. It is conceivable, he said, that if the questioners control the subject’s environment completely and the subject recognizes that he or she is completely in the questioner’s control, violence will not be needed.

“Both Dred Scott and those who defend torture today ask us to believe there are entire categories of people who have no rights,” Levinson said. “Torture may be less about concrete acts and more about total control and subordination.”

War, on the other hand, is more accepted by society than torture, Levinson said. Wars, though violent, are distinguished from torture by having willing participants on both sides. That distinction blurs, however, as war increasingly involves civilians.

The problem with the current war on terror, Levinson said, is that the opponent is not tied to another country against which retaliatory strikes can be made. Without the certainty of retaliation, there is no deterrence. That makes prevention an important way to head off a terrorist act, which can mean getting information about imminent strikes from members of terrorist organizations.

“Do we really believe there is no possible situation to legitimize the use of torture in any case?” Levinson asked. Related links:

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On the Ethics of Torture

Uwe Steinhoff, On the Ethics of Torture , SUNY Press, 2013, 191pp., $24.95 (pbk), ISBN 9781438446226.

Reviewed by Gregory Fried, Suffolk University

Torture is a problem from hell. Confronting torture seriously means weighing some of our most cherished principles and traditions against threats that once might have seemed fantastical but after 9/11 no longer do. On the one hand is a long-standing taboo against torture as a profound violation of human dignity. Deeply influential institutions, such as the Catholic Church, [1]  have taken an absolutist stand against torture, and the United Nations Convention against Torture, to which the United States is a signatory, allows "No exceptional circumstances whatsoever" to undermine a total ban on the practice. [2]  On the other hand are harrowing scenarios, some hypothetical but others now all too real, which pinion us with a desperate need for life-saving information.

Into this hell steps an important book by Uwe Steinhoff,  On the Ethics of Torture . This book is rather odd in  tone . Steinhoff makes the case for torture in certain limited circumstances, and he evidently has become indignant with some absolutist opponents of torture, who have accused him of "careless philosophizing" about torture scenarios (ix) and of undermining ethical discourse (chapter 7). In response, Steinhoff frequently treats the arguments of his opponents with scorn and sarcasm. Furthermore, in philosophical  style , this book trades heavily on what has become an epidemic in contemporary applied ethics: extravagant hypotheticals. Steinhoff litters his arguments with often gleefully graphic examples involving weapons that cause excruciating pain, disintegration guns, and vaginas that kill. Even making allowances, I find this rather hard to take; perhaps that is a merely aesthetic reaction, but I will return to it after treating Steinhoff's main argument.

That argument is indeed important, one that any absolutist opponent of torture (including myself [3] ) should take seriously. The core thesis is blisteringly simple: "torture is justifiable in certain narrowly circumscribed circumstances, in particular in certain self-defense situations" (ix). Steinhoff convincingly insists that his limited defense of torture is not based on consequentialist considerations. Quite the contrary, Steinhoff calls himself a "threshold deontologist" (44, 77); he supports deontological principles until a threshold of unacceptable consequences overrides the principle in question. This is not unusual for a deontologist (think of the Kantian who would lie to the Nazi hunting Jews), [4]  and Steinhoff is still justified in calling himself one, because (echoing Ronald Dworkin) taking rights seriously means allowing rights to trump utility  most  if not  all  of the time (43). What Steinhoff opposes is  absolutism  about acts. This is where the extravagant hypotheticals come in: to demonstrate that for any act you might think of as always absolutely wrong, we can conjure a  conceivable  scenario in which a reasonable person would have to allow that act.

This is not the first book to make a right-based defense of torture, [5]  but it makes the case powerfully and rebuts in detail the major anti-torture authors, such as David Luban, Henry Shue, David Sussman, and Jeremy Waldron. Steinhoff defines torture as "the knowing infliction of continuous or repeated extreme physical suffering for other than medical purposes" (7), defining "extreme" as anything roughly equivalent to "drilling on the unprotected nerve of a tooth" (9). Steinhoff discounts short "shocks" of pain, and he is skeptical about counting psychological pain a torture (9). This excludes much often considered torture: exposure to phobias, mock executions, and the like, as well as some practices that mix the physical and psychological, such as sleep or sensory deprivation, and exposure to temperature extremes. For the sake of argument, though, we should grant Steinhoff's restrictive definition, because if he can succeed on its basis, that is decisive enough. We can quibble another time about its parameters.

Self-defense is the heart of Steinhoff's argument: "People have a right to defend themselves or others against wrongful aggression, in particular if the aggression is life-threatening" (11). This premise is not consequentialist; it is about the  right  to defend oneself and others against unjust attack. Some might object to a right to self-defense (a pacifist might believe that death is preferable to acts of violence), but Steinhoff argues well that even Kant's deontology supports a  prima facie  right to self-defense, and so also a  duty  for a legitimate government to uphold that right in protecting its citizens against aggression (133).

Steinhoff's next move is to show that interrogative torture -- never punitive or sadistic torture (7) -- may be necessary for self‑defense. Here Steinhoff is on most solid ground with real-life "Dirty Harry" examples, the Daschner and Mook cases, where German police captured kidnappers who then refused to reveal where their respective victims were hidden and presumably in grave danger.  In the Daschner case, the kidnapper was threatened with torture and gave up the location of the child, who had already been murdered, but the police did not know that.  In the Mook case, the child, who had been imprisoned in a wooden box, was saved when the kidnapper revealed the location after a beating (which we can take as a case of torture for the sake of argument).  In each case, the police tortured the kidnappers and obtained information about where the child was hidden. Tragically, the Daschner child was already dead, but the Mook child was saved. Steinhoff reasonably asks why interrogational torture in such cases would be wrong, where there is no other credible option and the torture is both necessary and proportional. If we may use lethal force in self‑defense, why not torture? Also, if torture is the only option, it does not matter that torture sometimes fails or has a low chance of success; a victim of attempted rape, armed only with a sharp pencil, would still have a right to self-defense with that.

Absolutists have often argued that torture is worse than killing in self‑defense, but Steinhoff finds this unconvincing. To see why, we need to step back from torture and consider other horrible things we sometimes think are right if we take seriously the right to self‑defense against unjust assault. Violence, including killing, can be horrific (19), as is torture, but may still be right if necessary to save a victim of unjust attack. This is partly a function of nomenclature: We don't call justifiable violence "assault" or justifiable killing "murder," we call them "self-defense." There is no such terminological distinction for inflicting justifiable pain; it is all called  torture . Steinhoff asserts that given the choice, for oneself or a loved one, between being killed or being tortured, we would generally choose torture. True, as torture's duration and intensity increase, it is more and more likely to cause lasting physical or psychological damage, as studies have shown. "In contrast to this," Steinhoff counters with characteristic sarcasm, "empirical studies show that not 20, not 30, not 98, but  100 percent  of those who have been killed are dead" (23). Now, this is from the perspective of the  target  of the act, not the  actor , and there are deeper complexities at work that I cannot address here, but Steinhoff makes the cogent claim that killing is  usually  worse than  most forms of torture. Killing ends everything forever, torture may be survived, so if we accept the former in self‑defense, then we must accept the latter.

This core argument does a lot of work for Steinhoff. Absolutists often argue that torture is a horror because it breaks the will. As Steinhoff points out, torture does not always do so, but even when it does, so do many things we consider acceptable in collective self-defense, such as plea-bargaining with criminals and coercive detention (65). Anti-torture absolutists also argue that torture impermissibly targets someone who is defenseless, but other permissible forms of self-defense can do that, argues Steinhoff (93-4). Consider artillery out of enemy range, or a police sniper targeting an unarmed kidnapper about to push a child off a roof. But can there be self-defense if the defenseless target of torture is no longer a threat? Steinhoff reasonably answers by defining an active attack as follows:

one completes one's action x at the last point where one could have prevented the intended effect from coming about. Thus the terrorist [in a ticking bomb scenario] and the kidnapper are engaged in their attack on the child or the persons to be killed in the explosion for as long as they refuse to give the life-saving information. (37)

Even in captivity, the terrorist or kidnapper is still  acting , still  attacking . The rights of innocents trump the rights of aggressors.

While Steinhoff defends torture in self-defense, he argues adamantly against its institutionalization, such as by the "torture warrants" advocated by Alan Dershowitz: We do not need institutionalization because such cases are rare enough (64) that its hypothetical benefits "are not worth the risks" (67); I will return to this problematic point later. Steinhoff's argument for the  legalization  of torture under necessity statutes, but against its  institutionalization , links to his refutation of what he calls the "ticking  social  bomb" objection to torture, made by Shue and others, that if we allow torture in rare and limited cases, it will spread and corrupt a society's institutions. Against this threat of the inevitable "metastatic growth" of torture (66), Steinhoff points to the 1988 Mook case: torture helped rescue a buried child, yet Germany suffered no slide into generalized torture (58). For Steinhoff, the principle that "hard cases make bad law" actually supports limited use of torture because the absolutist anti-torture position "shields an aggressor from necessary and proportionate defensive measures by or on behalf of the victim . . . [and therefore] actually  aids and abets  the aggressor and violates the rights and the human dignity of the victim" (60). In a contest between the rights of an innocent victim and an unjustified aggressor, the victim's should triumph -- as they do when we kill aggressors in self-defense, or imprison them for crimes, despite the otherwise presumptive rights to life or to liberty.

These are the key elements of Steinhoff's self-defense argument for torture, and they are enough to move an anti-torture absolutist such as myself. But how far?

There are several serious problems with Steinhoff's argument. The first of these has to do with the  scope  of self-defense. Self-defense, understood broadly to include other-defense, has long stood as the bedrock justification for  jus   ad bellum , justice in going to war. Steinhoff's examples touch on  private  self‑defense, using torturous pain against an attacker when you cannot call on police aid, and  police  defense against criminal threats within a state. But what about a nation's  military  self‑defense against foreign aggression?

Steinhoff wants to argue that the circumstances that justify torture because of the dire need for life-saving information, such as kidnappings or ticking bombs, are exceedingly rare. But these are cases  within  states, not  between  states (or significant non‑state actors) at war. In wartime, the number of enemies with potentially life-saving information rises dramatically: field officers with knowledge of impending attacks; civilian leaders with knowledge of overall strategic plans; scientists with knowledge of weapons systems; and so on. May they be tortured when captured? Steinhoff insists that his interest in torture "was aroused by the German Daschner case, that is, by a child-kidnapping case, not by the 'terrorist threat' the American debate is obsessed with" (x). He derides the American obsession with "'the war on terrorism' and the silly and often racist 'us-versus-them' ideology that accompanies it" (x), and he deplores Abu Ghraib. Steinhoff concludes that if

torturing an Islamic terrorist is justified to avert the explosion of a ticking bomb that would kill thousands of innocent Americans or Israelis, it then is obviously also justified to torture a Christian or Jewish  state terrorist  if by doing so one can avert a more of less indiscriminate bombing campaign by the American or Israeli air force that would (once again) kill thousands of innocent Palestinians, Iraqis, or Afghans. (x; my emphasis)

But this is precisely the problem. The ticking bomb scenario straddles police and military action for self‑defense, because a domestic  or  a foreign enemy might plant it. Steinhoff wants to argue against the institutionalization of torture because "The ticking bomb case or the Dirty Harry [kidnapping] case is a very rare case," and so "it is safe to assume that all the torture that happened or happens in Abu Ghraib, Afghanistan, and Guantanamo simply has nothing to do with ticking bombs or hostages who are about to die" (64). He says the latter are  exceptions . Yet his own example that preventing an "indiscriminate bombing campaign" would justify torturing a "state terrorist" (presumably he means a civilian or military commander with information that might impede such an campaign) shows that  in war  such scenarios are far from " enormously rare " (67). Indeed, they may well be the norm, given how vital wartime intelligence and how devastating an enemy attack can be. So the "state terrorist" will not be a rare individual but rather may be hundreds, thousands, or more. If they possess decisive military intelligence as offenders in an unjust war, then by Steinhoff's own argument, even in custody they are  still actually attacking  and thereby violating the rights of the victim community.

Steinhoff relies on the very rarity of examples of  police  torture in Germany, a nation that has not suffered military attack or been (substantially) at war for nearly 70 years, to show that legalized self-defensive torture need not metastasize (72-3). But if torture against state (or quasi-state) terrorists is justified, as Steinhoff himself admits and as self-defense at the national level would require, that will justify torture on a much larger scale, and normalization and institutionalization seem inevitable. That is precisely what happened in the American case. When Bush's Office of Legal Counsel justified torture against some terrorists, fearing other massive attacks against civilians after 9/11, [6]  the practices, we now know, did metastasize institutionally across theaters of the world‑wide "War on Terror." [7]  This is rather powerful evidence. It does no good, as Steinhoff attempts, to say that "the torture in Guantanamo is not self‑defensive nor an instance of a justifying emergency" (157) and may not be used against terrorists for "fishing expeditions" in order "to find out more about their networks" (158), because one can simply say that the American torture regime was botched. If, as Steinhoff admits, "state terrorists" (i.e., large-scale aggressors) may be tortured to prevent bombing campaigns, then when there  is  good reason to believe that captured aggressors have vital information that could save lives, then they may justly be tortured, and America's criminal and incompetent torture regime is not an argument against  properly employed  wartime torture any more than a botched or disproportional attempt at more conventional self-defense would refute self-defense in general.

A second problem arises from Steinhoff's argument from necessity. He allows that in very rare cases, it might be right to torture an innocent. Steinhoff concocts the unfortunately plausible case of a sadistic but truthful soldier who gives a captured father the choice "to either waterboard his son for 30 minutes or to have him executed" (42). For Steinhoff, the right choice is clear: torture the child. If so, then Steinhoff must "bite the bullet" and ask, what about a ticking-bomb terrorist: if he won't break, may we torture his innocent child in front of him? Steinhoff argues that this would not be justified because "there is no evidence that would suggest that torturing a person by torturing somebody he deeply cares for is more effective in retrieving the vital information than torturing the first person himself" (42). This strikes me as a cop-out, given Steinhoff's argument. He frequently resorts to fantastical thought experiments to demonstrate that certain ethical outcomes are at least conceivable and therefore undermine absolutist prohibitions. Well, isn't it conceivable that a terrorist might have congenital analgia, the inability to feel pain, but still feel deeply about his child? Or what if time were very short and the stakes very high -- say, a nuclear bomb planted in a city? Steinhoff is willing to sacrifice some innocents for thousands or millions of other innocents. As he says: "You do the math" (52). Horrendously, this is not conjectural: John Yoo, formerly of the Bush administration's Office of Legal Counsel, has argued that the president has the authority to order the crushing of the testicles of a terrorist's child. [8]

And this brings us to my third reservation about Steinhoff's argument: its heavy reliance on hypotheticals. Thought experiments have done yeoman's work in philosophy ever since the tale of the ring of Gyges in Plato's  Republic . There clearly is a place for them in testing our moral intuitions, yet they have been taken too far down the trolley track in contemporary ethical theory. At issue here is  modality : the meaning of the possible for making sense of ethical life. Let me suggest two modes of the possible. One is the  merely conceivable , which involves science fiction elements or extraordinarily rare circumstances, things that are not logically impossible or outright violations of the laws of nature. The other mode is the  genuinely plausible , scenarios that are either actually possible (because they have happened) or feasible given a reasonable construal of existing realities. I would like to narrow the use of  hypothetical  to the latter set of  plausible  cases and coin a new term,  hyperthetical , for the merely conceivable.

I will grant that hypertheticals, such as the ring of Gyges or "philosophical zombies" (a recent craze in philosophy of mind) may be useful in testing our intuitions, ethical and otherwise, but they have limited value for thinking about what is right to do in the world we actually inhabit; indeed, they may  impede  good ethical judgment. At issue is the status of  acts  we would normally consider anathema. For  any  such taboo act -- rape, torture, child abuse -- it is possible to imagine a  hyperthetical  that would make us say, "Well, gosh, in a case like  that , I guess we would have to allow it." Steinhoff does just this for rape in the case of "Innocent Jenny" attacked by "Serial Killer," who both happen to be naked: "Jenny, who is a doctor, is currently treating her vaginal infection with a potent new ointment, which has the side-effect of killing any man whose penis is exposed to it long and severely enough" (149). In Steinhoff's scenario, Jenny and Killer struggle, and she manages to force his penis into her vagina while he says "No," thereby justifiably raping him to death in self-defense.

If this is not a  hyperthetical , I don't know what is. The point is this: to say that there are some things we should not do because they are wrong does not mean it is  inconceivable  that there might be extraordinary exceptions. The threshold of exception may be higher or lower depending on the act in question, with lying at the low end and things like killing and torture at the high end.

The reality is that the question of torture is part of an ongoing debate with real practical consequences, and Steinhoff owes us a fuller story about what his argument justifies. A kidnapped child buried alive is now sadly a plausible  hypothetical , but as we move along the range of modality to  hyperthetical  scenarios, something dangerous happens. Here I want to make an Aristotelian or Burkean argument about the ethical habits of both citizens and state institutions. Such habits are fragile, as torture's explosion in the "War of Terror" demonstrates. Jane Mayer has written about how Brigadier General Patrick Finnegan, then dean at West Point, led a delegation to the producers of the TV show "24" (literally a "ticking" deadline), because it had convinced so many West Point cadets that torture is justified, especially as employed by the show's hero, Jack Bauer, in dealing with life-and-death emergencies. The delegation did not convince the producers to alter the program's message, and "24" has been one of the most popular shows with troops stationed abroad after 9/11. [9]  I know first hand how seriously the military takes this concern, because my father and I were invited to West Point to discuss torture with faculty and students in 2011, after our own book on the subject came out.

The point is an Aristotelian one: We cannot form a shared culture of ethical life on the basis of outlandish hypertheticals. Practical wisdom, Aristotle's  phronêsis,  depends on developing ethical judgment and decision-making around hypotheticals that are tied to circumstances that we can recognize and share as plausible touchstones for life as we live it, so that when an exception does occur, we can deal with it precisely as an exception. Hypertheticals, such as Naked Jenny, or torturing innocent children, have the effect of unhinging practical wisdom from the historical context that any robust community of shared norms must learn to inhabit. They are a Trojan Horse: by accepting a remote possibility as setting the standard for action, the everyday and ordinary are utterly transformed. This is why an institution like West Point depends on a code of honor and on absolutes such as the prohibition on torture: a  presumptive inconceivability  imbues both individuals and communities with the requisite ethical intuitions, even if in rare cases these may be up‑ended.

But after 9/11, is a nuclear bomb planted in a city still just a hyperthetical? Maybe not. Torture is a problem from hell.  It   tortures   us  by putting cherished principles on the rack and forcing us to give in to exceptions. Torture  is  in fact worse than killing in this sense: history matters ,  context matters, and at this time in our history, it is torture -- not killing, not rape, and certainly not disintegration ray guns and killer vaginas -- that threatens to overturn principles vital to the foundation of liberal democracy. This is no hyperthetical concern, given the spread of torture under Bush. I will cede to Steinhoff that there are conceivable and isolated  hypotheticals , such as the Mook case, and now, horrifyingly, the planted nuclear bomb, that could make torture justified in self‑defense. But just as Steinhoff calls himself a threshold deontologist, we should stand for a  threshold absolutism  on torture. We must insist on the wrongfulness of torture, even if we accept that there might be exceptional cases where the wrong may be excused. Consider the intuition that while we might give soldiers in a just war medals and a parade, we should recoil at doing this for torturers, even in something like the Mook case. Above all, we must never make such excuses  ex ante , as a matter of open law or secret policy, much less make torture permissible in war, where it will indeed metastasize. Here I disagree with Steinhoff about legalization: violations of such a foundational norm must seek pardon  ex post facto , not license  ex ante . It may seem paradoxical that the justified may still be wrong, but such paradoxes are a feature of the tragic in the human condition, and we must mark the outer limits of hell as best we can.

ACKNOWLEDGEMENTS

I am grateful for conversations with Charles Fried, Mandeep Minhas, and Jeppe von Platz, which helped me develop the ideas in this review; its faults are entirely my own.

[1]  See Pope John Paul II ,  Veritatis Splendor , section 80.

[2]  See Article 2.2 of the  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment .

[3]  Charles Fried and Gregory Fried,  Because It Is Wrong: Torture, Privacy and Presidential Power in the Age of Terror  (New York: W. W. Norton, 2010).

[4]  See Charles Fried,  Right and Wrong  (Cambridge: Harvard University Press, 1978), 10.

[5]   For example: Stephen Kershnar,  For Torture: A Rights-Based Defense  (Lanham, MD: Lexington Books, 2011).

[6]  For an account of the perceived threat level following 9/11 and the Bush administration, see Jack Goldsmith,  The Terror Presidency: Law and Judgment Inside the Bush Administration  (New York: W. W. Norton, 2009).

[7]  See  Inquiry into the Treatment of Detainees in U.S. Custody: Report of the Committee on Armed Services, United States Senate, November 20, 2008 .

[8]  For John Yoo’s remarks, see Sidney Blumenthal, “ Meek, mild and menacing ,”  Salon , January 12, 2006, retrieved May 5, 2014. 

[9]  See Jane Mayer, “ Whatever It Takes: The Politics of the Man Behind ‘24,’ ”  The New Yorker , February 19, 2007.

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This entry is in four parts. The first part concerns the definition of torture and addresses the question, what is torture? The second part concerns the defining features of torture from a moral standpoint and addresses the question, what makes torture inherently morally wrong? For instance, it is generally held that torture is defined in part as the deliberate infliction of extreme suffering and that – by virtue of this defining feature – torture is morally wrong. Note that even actions or practices that are inherently morally wrong might be morally justified in extreme circumstances. Or to put things another way, performing an evil action might be morally justified if refraining from performing it constituted a much greater evil. Indeed, the third part of the entry concerns just this possibility: the possibility that notwithstanding its inherent moral wrongness, torture might, nevertheless, in extreme emergencies be morally justified. In short, the third part addresses the question, is torture morally justified in extreme emergencies? The last part of the entry concerns the legality, as opposed to the morality, of torture and addresses the question,should torture ever be legalised or otherwise institutionalised? [ 1 ]

In relation to the definition of torture, there are now a number of contemporary philosophical accounts on offer, notably those of Twining & Paskins (1978), Davis (2005), Miller (2005), Sussman (2005), Gross (2009), Wisnewski (2010), Kamm (2011) and Kramer (2014). Moreover, there are numerous detailed discussions concerning the inherent moral wrongness of torture, all of which focus on the extreme suffering inflicted (Bentham 1804; Shue 1978; Miller 2005 and 2009; Matthews 2008; Brecher 2008; Kershnar 2011), but some of which put greater emphasis on torture as a violation of autonomy (Sussman 2005; Miller 2005; Barry 2015; Bronsther 2019). Useful collections of essays on this and related topics are Levinson 2004, Greenberg et al. 2005, Roth & Worden 2005, Rodin 2007, Allhoff 2008, Clucas et al. 2009, Luban 2014, Shue 2016, and Anderson & Nussbaum 2018. Aside from the considerable literature on the psychological effects of torture (including on moral autonomy) more recently there has been a focus on the corresponding relationship between findings in neuroscience and moral issues (Al-Rodhan 2023).

The contemporary debate concerning the moral justifiability of torture in extreme emergencies (Farrell 2013; Tiel 2019) principally concerns the torture of terrorists and is dominated by two groups. There are those who argue in the affirmative and point to so-called ticking bomb scenarios to support their case. These theorists often adhere to some form of consequentialism, such as utilitarianism. They include Allhoff (2003, 2012), and Bagaric and Clarke (2007), albeit the classic utilitarian justification remains that of Bentham (1804). (See also Twining & Twining 1973 and Meisels 2015.) Then there are those who argue in the negative and stress not only the inherent immorality of torture but also contest that it ever has good effects in practice (Davis 2005; Brecher 2008; Matthews 2008; Jensen 2024). For instance, they typically claim that torture does not work, since those who are tortured tell their torturers whatever they want to hear.

The classic denunciation of the legalisation of torture is that of Cesare Beccaria 1764. In the contemporary debate concerning the legalisation of torture many theorists of a liberal persuasion have stressed the incompatibility of torture with the values underpinning liberal institutions (Luban 2005; Waldron 2005, 2010; Shue 2016). Moreover, in this contemporary debate, the protagonists have tended to assume that if torture is morally justified in some extreme emergencies then it ought to be legalised. Thus Alan Dershowitz claims that torture is morally justified in some extreme emergencies and, in the light of this claim, argues for torture warrants in these cases (2003, Chapter 4). [ 2 ] See also Steinhoff 2006 and 2013. However, some theorists have argued that although torture can in some extreme emergencies be morally justified, nevertheless, torture ought never to be legalised or otherwise institutionalised. This position was originally advanced by Machan (1990) before being argued in more detail by Miller (2005) and (2009), and later by McMahan (2008).

Before proceeding to the question, or questions, of the moral justifiability of torture in extreme emergencies we need some understanding of what torture is. We also need some account of what is inherently morally wrong with torture.

1. Definition of Torture

2. what is inherently wrong with torture, 3.1 case study – the beating, 3.2 case study – the terrorist and the ticking bomb, 4. the moral justification for legalised and institutionalised torture, other internet resources, related entries.

Torture includes such practices as searing with hot irons, burning at the stake, electric shock treatment to the genitals, cutting out parts of the body, e.g., tongue, entrails or genitals, severe beatings, suspending by the legs with arms tied behind back, applying thumbscrews, inserting a needle under the fingernails, drilling through an unanesthetized tooth, making a person crouch for hours in the ‘Z’ position, waterboarding (submersion in water or dousing to produce the sensation of drowning), and denying food, water or sleep for days or weeks on end. [ 3 ]

All of these practices presuppose that the torturer has control over the victim’s body, e.g., the victim is strapped to a chair.

Most of these practices, but not all of them, involve the infliction of extreme physical pain. For example, sleep deprivation does not necessarily involve the infliction of extreme physical pain . However, all of these practices involve the infliction of extreme physical suffering , e.g., exhaustion in the case of sleep deprivation. Indeed, all of them involve the intentional infliction of extreme physical suffering on some non-consenting and defenceless person. If A accidentally sears B with hot irons A has not tortured B ; intention is a necessary condition for torture. Further, if A intentionally sears B with hot irons and B consented to this action, then B has not been tortured. Indeed, even if B did not consent, but B could have physically prevented A from searing him then B has not been tortured. That is, in order for it to be an instance of torture, B has to be defenceless. [ 4 ]

Is the intentional infliction of extreme mental suffering on a non-consenting, defenceless person necessarily torture? Michael Davis thinks not (2005: 163). Assume that B ’s friend, A , is being tortured, e.g., A is undergoing electric shock treatment, but that B himself is untouched – albeit B is imprisoned in the room adjoining the torture chamber. (Alternatively, assume that B is in a hotel room in another country and live sounds and images of the torture are intentionally transmitted to him in his room by the torturer in such a way that he cannot avoid seeing and hearing them other than by leaving the room after having already seen and heard them.) However, A is being tortured for the purpose of causing B to disclose certain information to the torturer. B is certainly undergoing extreme mental suffering. Nevertheless, B is surely not himself being tortured. To see this, reflect on the following revised version of the scenario. Assume that A is not in fact being tortured; rather the ‘torturer’ is only pretending to torture A . However, B believes that A is being tortured; so B ’s mental suffering is as in the original scenario. In this revised version of the scenario the ‘torturer’ is not torturing A . In that case surely he is not torturing B either. [ 5 ]

On the other hand, it might be argued that some instances of the intentional infliction of extreme mental suffering on non-consenting, defenceless persons are cases of torture, albeit some instances (such as the above one) are not. Consider, for example, a mock execution or a situation in which a victim with an extreme rat phobia lies naked on the ground with his arms and legs tied to stakes while dozens of rats are placed all over his body and face. The difference between the mock execution and the phobia scenario on the one hand, and the above case of the person being made to believe that his friend is being tortured on the other hand, is that in the latter case the mental suffering is at one remove; it is suffering caused by someone else’s (believed) suffering. However, such suffering at one remove is in general less palpable, and more able to be resisted and subjected to rational control; after all, it is not my body that is being electrocuted, my life that is being threatened, or my uncontrollable extreme fear of rats that is being experienced. An exception to this general rule might be cases involving the torture of persons with whom the sufferer at one remove has an extremely close relationship and a very strong felt duty of care, e.g. a child and its parent. At any rate, if as appears to be the case, there are some cases of mental torture then the above definition will need to be extended, albeit in a manner that does not admit all cases of the infliction of extreme mental suffering as being instances of torture.

In various national and international laws, e.g., Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (United Nations 1984 – see Other Internet Resources), a distinction is made between torture and inhumane treatment, albeit torture is a species of inhumane treatment. Such a distinction needs to be made. For one thing, some treatment, e.g., flogging, might be inhumane without being sufficiently extreme to count as torture. For another thing, some inhumane treatment does not involve physical suffering to any great extent, and is therefore not torture, properly speaking (albeit, the treatment in question may be as morally bad as, or even morally worse than, torture). Some forms of the infliction of mental suffering are a case in point, as are some forms of morally degrading treatment, e.g., causing a prisoner to pretend to have sex with an animal.

So torture is the intentional infliction of extreme physical suffering on some non-consenting, defenceless person. Is this an adequate definition of torture? Perhaps not, albeit some theorists, such as Kamm (2011), adhere to this kind of conception. Consider the following imaginary counter-example. A woman who is being raped but who is, nevertheless, still in control of the movement of her jaws sinks her teeth into the face of her attacker causing him excruciating pain against which he is defenceless, until finally he desists. Surely the woman is not torturing her attacker but rather defending herself by inflicting excruciating pain on her attacker. Evidently what is missing in the account thus far is the relationship between torture and autonomy: torture substantially curtails autonomy

So torture is: (a) the intentional infliction of extreme physical suffering on some non-consenting, defenceless person, and; (b) the intentional, substantial curtailment of the exercise of the person’s autonomy (achieved by means of (a)). Is this now an adequate definition of torture? Perhaps not.

Here we need to consider the purpose or point of torture.

The above-mentioned U.N. Convention identifies four reasons for torture, namely: (1) to obtain a confession; (2) to obtain information; (3) to punish; (4) to coerce the sufferer or others to act in certain ways. Certainly, these are all possible purposes of torture, as is torture performed for sadistic pleasure. [ 6 ] However, in the contemporary literature the concern is principally with interrogational torture; torture to obtain information (Skerker 2010; Lauritzen 2013).

It seems that in general torture is undertaken for the purpose of breaking the victim’s will. [ 7 ] If true, this distinguishes torture for the sake of breaking the victim’s will from the other four purposes mentioned above. For with respect to each one of these four purposes, it is not the case that in general torture is undertaken for that purpose, e.g., in most contemporary societies torture is not generally undertaken for the purpose of punishing the victim.

One consideration in favour of the proposition that breaking the victim’s will is a purpose central to the practice of torture is that achieving the purpose of breaking the victim’s will is very often a necessary condition for the achievement of the other four identified purposes (and, indeed, for the achievement of sadistic pleasure). In the case of interrogatory torture of an enemy spy, for example, in order to obtain the desired information the torturer must first break the will of the victim. And when torture – as opposed to, for example, flogging as a form of corporal punishment – is used as a form of punishment it typically has as a proximate, and in part constitutive, purpose to break the victim’s will. Hence torture as punishment does not consist – as do other forms of punishment – of a determinate set of specific, pre-determined and publicly known acts administered over a definite and limited time period.

A second consideration is as follows. We have seen that torture involves substantially curtailing the victim’s autonomy. However, to substantially curtail someone’s autonomy is not necessarily to break their will. Consider the torture victim who holds out and refuses to confess or provide the information sought by the torturer. Nevertheless, a proximate logical endpoint of the process of curtailing the exercise of a person’s autonomy is the breaking of their will, at least for a time and in relation to certain matters.

These two considerations taken together render it plausible that in general torture has as a purpose to break the victim’s will.

So perhaps the following definition is adequate. Torture is: (a) the intentional infliction of extreme physical suffering on some non-consenting, defenceless person; (b) the intentional, substantial curtailment of the exercise of the person’s autonomy (achieved by means of (a)); (c) in general , undertaken for the purpose of breaking the victim’s will.

Note that breaking a person’s will is short of entirely destroying or subsuming their autonomy. Sussman implausibly holds the latter to be definitive of torture: “The victim of torture finds within herself a surrogate of the torturer, a surrogate who does not merely advance a particular demand for information, denunciation or confession. Rather, the victim’s whole perspective is given over to that surrogate, to the extent that the only thing that matters to her is pleasing this other person who appears infinitely distant, important, inscrutable, powerful and free. The will of the torturer is thus cast as something like the source of all value in his victim’s world” (Sussman 2005: 26). (See also Bernstein 2015.) Such self-abnegation might be the purpose of some forms of torture, as indeed it is of some forms of slavery and brainwashing, but it is certainly not definitive of torture.

Consider victims of torture who are able to resist so that their wills are not broken. An example from the history of Australian policing is that of the notorious criminal and hard-man, James Finch: “He [Finch] was handcuffed to a chair and we knocked the shit out of him. Siddy Atkinson was pretty fit then and gave him a terrible hiding….no matter what we did to Finch, the bastard wouldn’t talk” (Stannard 1988: 40). Again, consider the famous case of Steve Biko who it seems was prepared to die rather than allow his torturers to break his will (Arnold 1984: 281–2). [ 8 ]

Here breaking a person’s will can be understood in a minimalist or a maximalist sense. This is not to say that the boundaries between these two senses can be sharply drawn.

Understood in its minimal sense, breaking a person’s will is causing that person to abandon autonomous decision-making in relation to some narrowly circumscribed area of life and for a limited period. [ 9 ] Consider, for example, a thief deciding to disclose or not disclose to the police torturing him where he has hidden the goods he has stolen (a torturing practice frequently used by police in India). [ 10 ] Suppose further that he knows that he can only be legally held in custody for a twenty-four hour period, and that the police are not able to infringe this particular law. By torturing the thief the police might break his will and, against his will, cause him to disclose the whereabouts of the stolen goods.

Understood in its maximal sense, breaking a person’s will involves reaching the endpoint of the kind of process Sussman describes above, i.e., the point at which the victim’s will is subsumed by the will of the torturer. Winston Smith in George Orwell’s 1984 is, as Sussman notes, an instance of the latter extreme endpoint of some processes of torture. Smith ends up willingly betraying what is dearest and most important to him, i.e., his loved one Julia.

Moreover, there are numerous examples of long term damage to individual autonomy and identity caused by torture, to some extent irrespective of whether the victim’s will was broken. For example, some victims of prolonged torture in prisons in authoritarian states are so psychologically damaged that even when released they are unable to function as normal adult persons, i.e. as rational choosers pursuing their projects in a variety of standard interpersonal contexts such as work and family.

Given the above definition of torture (elaborated in Miller 2005 and 2009), we can distinguish torture from the following practices.

Firstly, we need to distinguish torture from coercion. In the case of coercion, people are coerced into doing what they don’t want to do. This is consistent with their retaining control over their actions and making a rational decision to, say, hand over their wallet when told to do so by a robber who threatens to shoot them dead (albeit painlessly) if they don’t do so. As this example shows, coercion does not necessarily involve the infliction of physical suffering (or threat thereof). So coercion does not necessarily involve torture. Nor does coercion, which does involve the infliction of physical suffering as a means, necessarily constitute torture. Consider, for example, a South African police officer in the days of apartheid who used a cattle prodder which delivers an electric shock on contact as a means of controlling an unruly crowd of South African blacks. Presumably, this is not torture because the members of the crowd are not under the police officer’s control; specifically, they are not defenceless in the face of the cattle prodder. On the other hand, if – as also evidently took place in apartheid South Africa – a person was tied to a chair and thereby rendered defenceless, and then subjected to repeated electric shocks from a cattle prodder this would constitute torture.

Does torture necessarily involve coercion? No doubt the threat of torture, and torture in its preliminary stages, simply functions as a form of coercion in this sense. However, torture proper has as its starting point the failure of coercion, or that coercion is not even going to be attempted. As we have seen, torture proper targets autonomy itself, and seeks to overwhelm the capacity of the victims to exercise rational control over their decisions – at least in relation to certain matters for a limited period of time – by literally terrorising them into submission. Hence there is a close affinity between terrorism and torture. Indeed, arguably torture is a terrorist tactic. However, it is one that can be used by groups other than terrorists, e.g., it can be used against enemy combatants by armies fighting conventional wars and deploying conventional military strategies. In relation to the claim that torture is not coercion, it might be responded that at least some forms or instances of torture involve coercion, namely those in which the torturer is seeking something from the victim, e.g., information, and in which some degree of rational control to comply or not with the torturer’s wishes is retained by the victim. This response is plausible. However, even if the response is accepted, there will remain instances of torture in which these above-mentioned conditions do not obtain; presumably, these will not be instances of coercion.

Secondly, torture needs to be distinguished from excruciatingly painful medical procedures. Consider the case of a rock-climber who amputates a fellow climber’s arm, which got caught in a crevice in an isolated and inhospitable mountain area. These kinds of case differ from torture in a number of respects. For example, such medical procedures are consensual and not undertaken to break some persons’ will, but rather to promote their physical wellbeing or even to save their life.

Thirdly, there is corporal punishment. Corporal punishment is, or ought to be, administered only to persons who have committed some legal and/or moral offence for the purpose of punishing them. By contrast, torture is not – as is corporal punishment – limited by normative definition to the guilty; and in general torture, but not corporal punishment, has as its purpose the breaking of a person’s will. Moreover, unlike torture, corporal punishment will normally consist of a determinate set of specific, pre-determined and publicly known acts administered during a definite and limited time period, e.g., ten lashes of the cat-o-nine-tails for theft.

Fourthly, there are ordeals involving the infliction of severe pain. Consider Gordon Liddy who reportedly held his hand over a burning candle till his flesh burnt in order to test his will. Ordeals have as their primary purpose to test a person’s will, but are not undertaken to break a person’s will. Moreover, ordeals – as the Liddy example illustrates – can be voluntary, unlike torture.

Having provided ourselves with an analytic account of torture and distinguished torture from some closely related practices, we need to turn now to the question, What is Wrong with Torture?

In terms of the above definition of torture there are at least two things that are inherently morally wrong with torture. Firstly, torture consists in part in the intentional infliction of severe physical suffering – typically, severe pain; that is, torture hurts very badly. For this reason alone, torture is an evil thing.

Secondly, torture of human beings consists in part in the intentional, substantial curtailment of individual autonomy. Given the moral importance of autonomy, torture is an evil thing – even considered independently of the physical suffering it involves. (And if torture involves the breaking of someone’s will, especially in the maximalist sense, then it is an even greater evil than otherwise would be the case.)

Given that torture involves both the infliction of extreme physical suffering and the substantial curtailment of the victim’s autonomy, torture is a very great evil indeed. Nevertheless, there is some dispute about how great an evil torture is relative to other great evils, specifically killing and murder.

Many have suggested that torture is a greater evil than killing or even murder. For example, Michael Davis claims, “Both torture and (premature) death are very great evils but, if one is a greater evil than the other, it is certainly torture” (2005: 165), and David Sussman says, “Yet while there is a very strong moral presumption against both killing and torturing a human being, it seems that we take the presumption against torture to be even greater than that against homicide” (2005: 15).

Certainly, torturing an innocent person to death is worse than murder, for it involves torture in addition to murder. On the other hand, torture does not necessarily involve killing, let alone murder, and indeed torturers do not necessarily have the power of life and death over their victims. Consider police officers whose superiors turn a blind eye to their illegal use of torture, but who do not, and could not, cover-up the murder of those tortured; the infliction of pain in police cells can be kept secret, but not the existence of dead bodies.

On the moral wrongness of torture as compared to killing, the following points can be made.

First, torture is similar to killing in that both interrupt and render impossible the normal conduct of human life, albeit the latter – but not the former – necessarily forever. But equally during the period a person is being tortured (and in some cases thereafter) the person’s world is almost entirely taken up by extreme pain and their asymmetrical power relationship to the torturer, i.e. the torture victim’s powerlessness. Indeed, given the extreme suffering being experienced and the consequent loss of autonomy, the victim would presumably rather be dead than alive during that period. So, as already noted, torture is a very great evil. However, it does not follow from this that being killed is preferable to being tortured. Nor does it follow that torturing someone is morally worse than killing him.

It does not follow that being killed is preferable to being tortured because the duration of the torture might be brief, one’s will might not ultimately be broken, and one might go on to live a long and happy life; by contrast, being killed – theological considerations aside – is always ‘followed by’ no life whatsoever. For the same reason it does not follow that torturing a person is morally worse than killing that person. If the harm brought about by an act of torture is a lesser evil than the harm done by an act of killing then, other things being equal, the latter is morally worse than the former.

A second point pertains to the powerlessness of the victims of torture. Dead people necessarily have no autonomy or power; so killing people is an infringement of their right to autonomy as well as their right to life. [ 11 ] What of the victims of torture?

The person being tortured is for the duration of the torturing process physically powerless in relation to the torturer. By “physically powerless” two things are meant: the victim is defenceless, i.e., the victim cannot prevent the torturer from torturing the victim, and the victim is unable to attack, and therefore physically harm, the torturer. Nevertheless, it does not follow from this that the victim is entirely powerless vis-à-vis the torturer. For the victim might be able to strongly influence the torturer’s actions, either by virtue of having at this time the power to harm people other than the torturer, or by virtue of having at some future time the power to defend him/herself against the torturer, and/or attack the torturer. Consider the clichéd example of the terrorist who is refusing to disclose to the torturer the whereabouts of a bomb with a timing device which is about to explode in a crowded market-place. Perhaps the terrorist could negotiate the cessation of torture and immunity for himself, if he talks. Consider also a situation in which both a hostage and his torturer know that it is only a matter of an hour before the police arrive, free the hostage and arrest the torturer; perhaps the hostage is a defence official who is refusing to disclose the whereabouts of important military documents and who is strengthened in his resolve by this knowledge of the limited duration of the pain being inflicted upon him.

The conclusion to be drawn from these considerations is that torture is not necessarily morally worse than killing (or more undesirable than death), though in many instances it may well be. Killing is an infringement of the right to life and the right to autonomy. Torture is an infringement of the right to autonomy, but not necessarily of the right to life. Moreover, torture is consistent with the retrieval of the victim’s autonomy, whereas killing is not. On the other hand, the period during which the victim is being tortured is surely worse than not being alive during that time, and torture can in principle extend for the duration of the remainder of a person’s life. Further, according to our adopted definition, torture is an intentional or purposive attack on a person’s autonomy; this is not necessarily the case with killing. [ 12 ] Finally, torture can in principle involve the effective destruction of a person’s autonomy.

Let us now turn directly to the question of the moral justification for torture in extreme emergencies. Here we must distinguish between one-off cases of torture, on the one hand, and legalised or institutionalised torture, on the other.

3. The Moral Justification for One-off Acts of Torture in Emergencies

In this section one-off, non-institutionalised acts of torture performed by state actors in emergency situations are considered. The argument is that there are, or could well be, one-off acts of torture in extreme emergencies that are, all things considered, morally justifiable. Accordingly, the assumption is that the routine use of torture is not morally justified; so if it turned out that the routine use of torture was necessary to, say, win the war on terrorism, then some of what is said here would not be to the point. However, liberal democratic governments and security agencies have not even begun to exhaust the political strategies, and the military/police tactics short of the routine use of torture, available to them to combat terrorism.

The most obvious version of the argument in favour of one-off acts of torture in extreme emergencies is consequentialist in form. For example, Bagaric and Clarke (2007: 29) offer a version of the ticking bomb scenario in the context of their hedonistic act utilitarian theoretical perspective. A standard objection to this kind of appeal to consequentialism is that it licenses far too much: torture of a few innocent victims may well be justified, on this account, if it provides intense pleasure for a much larger number of sadists. As it happens, Bagaric and Clarke insist that they want to restrict the practice of torture; only the guilty are to be subjected to torture and only for the purpose of extracting information. However it is far from clear how this desired restriction can be reconciled with consequentialism in any of its various permutations, let alone the relatively permissive version favoured by Bagaric and Clarke. Why, for example, should torture be restricted to the guilty, if torturing a small number of innocent persons would enable the lives of many other innocents to be saved (as presumably it might). Again, why should under-resourced Indian police not torture – as they often do in reality – a repeat offender responsible for a very large number of property crimes, if this proves to be the only available efficient and effective form of retrieving the stolen property in question and, thereby, securing the conviction of this offender, reducing property crime and making a large number of property owners happy? The essential problem confronted by consequentialists participating in the torture debate is that their theoretically admissible moral barriers to torture are relatively flimsy; too flimsy, it seems, to accommodate the strong moral intuitions in play.

Faced with the slippery slope, as they see it, of one-off acts of torture in extreme emergencies transmogrifying into institutionalised torture, and/or simply appalled by the inherent evil of the practice of torture, many theorists – Arrigo (2004), Davis (2005), Luban (2005), Juratowitch (2008), Mayerfield (2008), Brecher (2008), Matthews (2008), and Shue (2016) – have opted for the opposite extreme and argued that torture can never be morally justified. Most of these theorists avoid the problems besetting consequentialists such as Bagaric and Clarke, and they are on strong ground when providing counter-arguments to consequentialist perspectives and/or views that seek to justify torturing the innocent. (But see Arrigo 2004.) However, their moral absolutism is not without its own problems: specifically, in relation to torturing the guilty few for the purpose of saving the innocent many. (See Walzer 1973, Miller 2005; Kershnar 2006 and Steinhoff 2013.)

Before turning in detail to the arguments on this issue, let us consider some putative examples of the justified use of torture, many of which might be regarded as instances of dirty hands (Walzer 1973 and Meisels 2015). The first is a policing example, the second a terrorist example. Arguably, both examples are realistic, albeit the terrorist ticking bomb scenario is often claimed by moral absolutists to be utterly fanciful. Certainly, the policing example is realistic; indeed, it was provided by a former police officer from his own experience. Moreover, it is widely reported in the media that Al Qaeda, for example, has in the past sought to acquire a nuclear device to detonate in a western city and the 9/11 attacks and bombings in Bali, London, Madrid and Mumbai should leave no doubt whatsoever that Al Qaeda would use such a device if they could get their hands on one. So is it entirely fanciful that there could be such an attack and that an Al Qaeda operative known (on the basis of intercepted communications) to be a member of the cell involved in the planned attack might not be arrested, interrogated and tortured(?) prior to the detonation? At any rate, these are the two most popular kinds of example discussed in the literature. These cases include the real-life Daschner case involving the threat to torture a kidnapper by German police in 2002 which resulted in the kidnapper disclosing the location of a kidnapped child (Miller 2005).

Consider the following case study:

Height of the antipodean summer, Mercury at the century-mark; the noonday sun softened the bitumen beneath the tyres of her little Hyundai sedan to the consistency of putty. Her three year old son, quiet at last, snuffled in his sleep on the back seat. He had a summer cold and wailed like a banshee in the supermarket, forcing her to cut short her shopping. Her car needed petrol. Her tot was asleep on the back seat. She poured twenty litres into the tank; thumbing notes from her purse, harried and distracted, her keys dangled from the ignition.

Whilst she was in the service station a man drove off in her car. Police wound back the service station’s closed-circuit TV camera, saw what appeared to be a heavy set Pacific Islander with a blonde-streaked Afro entering her car. “Don’t panic”, a police constable advised the mother, “as soon as he sees your little boy in the back he will abandon the car.” He did; police arrived at the railway station before the car thief did and arrested him after a struggle when he vaulted over the station barrier.

In the police truck on the way to the police station: “Where did you leave the Hyundai?” Denial instead of dissimulation: “It wasn’t me.” It was – property stolen from the car was found in his pockets. In the detectives’ office: “It’s been twenty minutes since you took the car – little tin box like that car – It will heat up like an oven under this sun. Another twenty minutes and the child’s dead or brain damaged. Where did you dump the car?” Again: “It wasn’t me.”

Appeals to decency, to reason, to self-interest: “It’s not too late; tell us where you left the car and you will only be charged with Take-and-Use. That’s just a six month extension of your recognizance.” Threats: “If the child dies I will charge you with Manslaughter!” Sneering, defiant and belligerent; he made no secret of his contempt for the police. Part-way through his umpteenth, “It wasn’t me”, a questioner clipped him across the ear as if he were a child, an insult calculated to bring the Islander to his feet to fight, there a body-punch elicited a roar of pain, but he fought back until he lapsed into semi-consciousness under a rain of blows. He quite enjoyed handing out a bit of biffo, but now, kneeling on hands and knees in his own urine, in pain he had never known, he finally realised the beating would go on until he told the police where he had abandoned the child and the car.

The police officers’ statements in the prosecution brief made no mention of the beating; the location of the stolen vehicle and the infant inside it was portrayed as having been volunteered by the defendant. The defendant’s counsel availed himself of this falsehood in his plea in mitigation. When found, the stolen child was dehydrated, too weak to cry; there were ice packs and dehydration in the casualty ward but no long-time prognosis on brain damage.

(Case Study provided by John Blackler, a former New South Wales police officer.)

In this case study torture of the car thief can be provided with a substantial moral justification, even if it does not convince everyone. Consider the following points: (1) The police reasonably believe that torturing the car thief will probably save an innocent life; (2) the police know that there is no other way to save the life; (3) the threat to life is more or less imminent; (4) the baby is innocent; (5) the car thief is known not to be an innocent – his action is known to have caused the threat to the baby, and he is refusing to allow the baby’s life to be saved.

The classic, indeed cliché, example used to justify torture is that of the so-called ‘ticking bomb’. [ 13 ] (See Bufacchi & Arrigo 2006, Kleinig 2006, Hill 2007, Kaufman 2008, Segev 2008, Wisnewski 2009 and Steinhoff 2013.) Consider the following case.

A terrorist group has planted a small nuclear device with a timing mechanism in London and it is about to go off. If it does it will kill thousands and make a large part of the city uninhabitable for decades. One of the terrorists has been captured by the police, and if he can be made to disclose the location of the device then the police can probably disarm it and thereby save the lives of thousands. The police know the terrorist in question. They know he has orchestrated terrorist attacks, albeit non-nuclear ones, in the past. Moreover, on the basis of intercepted mobile phone calls and e-mails the police know that this attack is under way in some location in London and that he is the leader of the group. Unfortunately, the terrorist is refusing to talk and time is slipping away. However, the police know that there is a reasonable chance that he will talk, if tortured. Moreover, all their other sources of information have dried up. Furthermore, there is no other way to avoid catastrophe; evacuation of the city, for example, cannot be undertaken in the limited time available. Torture is not normally used by the police, and indeed it is unlawful to use it.

In this case study there is also a substantial moral justification for torture, albeit one that many moral absolutists do not find compelling. Consider the following points: (1) The police reasonably believe that torturing the terrorist will probably save thousands of innocent lives; (2) the police know that there is no other way to save those lives; (3) the threat to life is more or less imminent; (4) the thousands about to be murdered are innocent – the terrorist has no good, let alone decisive, justificatory moral reason for murdering them; (5) the terrorist is known to be (jointly with the other terrorists) morally responsible for planning, transporting, and arming the nuclear device and, if it explodes, he will be (jointly with the other terrorists) morally responsible for the murder of thousands.

In addition to the above set of moral considerations, consider the following points. The terrorist is culpable on two counts. Firstly, the terrorist is forcing the police to choose between two evils, namely, torturing the terrorist or allowing thousands of lives to be lost. Were the terrorist to do what he ought to do, namely, disclose the location of the ticking bomb, the police could refrain from torturing him. This would be true of the terrorist, even if he were not actively participating in the bombing project. Secondly, the terrorist is in the process of completing his (jointly undertaken) action of murdering thousands of innocent people. He has already undertaken his individual actions of, say, transporting and arming the nuclear device; he has performed these individual actions (in the context of other individual actions performed by the other members of the terrorist cell) in order to realise the end (shared by the other members of the cell) of murdering thousands of Londoners. In refusing to disclose the location of the device the terrorist is preventing the police from preventing him from completing his (joint) action of murdering thousands of innocent people. [ 14 ] To this extent the terrorist is in a different situation from a bystander who happens to know where the bomb is planted but will not reveal its whereabouts, and in a different situation from someone who might have inadvertently put life at risk (Miller (2005); Hill (2007)).

In the institutional environment described, torture is both unlawful and highly unusual. Accordingly the police, if it is discovered that they have tortured the terrorist, would be tried for a serious crime and, if found guilty, sentenced. We will return to this issue in the following section. Here simply note that the bare illegality of their act of torture does not render it morally impermissible, given it was otherwise morally permissible. Here it is the bare fact that it is illegal that is in question. So the relevant moral considerations comprise whatever moral weight attaches to compliance with the law just for the sake of compliance with the law, as distinct from compliance for the sake of the public benefits the law brings or compliance because of the moral weight that attaches to the moral principle that a particular law might embody. But even if it is held that compliance with the law for its own sake has some moral weight – and arguably it has none – it does not have sufficient moral weight to make a decisive difference in this kind of scenario. In short, if torturing the terrorist is morally permissible absent questions of legality, the bare fact of torture being illegal does not render it morally impermissible.

Note also that since the terrorist is, when being tortured, still in the process of attempting to complete his (joint) action of murdering thousands of Londoners, and murdering also the police about to torture him, the post factum legal defence of necessity may well be available to the police should they subsequently be tried for torture. [ 15 ]

Some commentators on scenarios of this kind are reluctant to concede that the police are morally entitled – let alone morally obliged – to torture the offender. How do these commentators justify their position?

Someone might claim that torture is an absolute moral wrong (Matthews 2008; Brecher 2008). (For criticisms of these authors see especially Steinhoff 2013 and Allhoff 2012.) On this view there simply are no real or imaginable circumstances in which torture could be morally justified.

This is a hard view to sustain, not least because we have already seen that being tortured is not necessarily worse than being killed, and torturing someone not necessarily morally worse than killing him. Naturally, someone might hold that killing is an absolute moral wrong, i.e., killing anyone – no matter how guilty – is never morally justified. This view is consistent with holding that torture is an absolute moral wrong, i.e. torturing anyone – no matter how guilty – is never morally justified. However, the price of consistency is very high. The view that killing is an absolute moral wrong is a very implausible one. It would rule out, for example, killing in self-defence. Let us, therefore, set it aside and continue with the view that torture, but not killing, is an absolute moral wrong.

For those who hold that killing is not an absolute moral wrong, it is very difficult to see how torture could be an absolute moral wrong, given that killing is sometimes morally worse than torture. In particular, it is difficult to see how torturing (but not killing) the guilty terrorist and saving the lives of thousands could be morally worse than refraining from torturing him and allowing him to murder thousands – torturing the terrorist is a temporary infringement of his autonomy, whereas his detonating of the nuclear device is a permanent violation of the autonomy of thousands.

In conclusion, the view that it is, all things considered, morally wrong to torture the terrorist in the scenario outlined faces very serious objections; and it is difficult to see how these objections can be met. It is plausible, therefore, that there are some imaginable circumstances in which it is morally permissible to torture someone.

Let us now turn to the other argument of those opposing the moral permissibility of torture mentioned above. This is not the argument that torture is an absolute moral wrong but rather that, as Michael Davis puts it, “For all practical purposes – and so, for moral agents like us – torture is absolutely morally wrong” (2005: 170). The basic idea is that while torture is not an absolute moral wrong in the sense that the evil involved in performing any act of torture is so great as to override any other conceivable set of moral considerations, nevertheless, there are no moral considerations that in the real world have overridden, or ever will override, the moral injunction against torture; the principle of refraining from torture has always trumped, and will always trump, other moral imperatives. Proponents of this view can happily accept that the offenders in putative examples should be tortured, while simultaneously claiming that the scenarios in these examples are entirely fanciful ones that have never been, and will never be, realised in the real world.

It is important to stress here that the kind of scenario under discussion remains that of the one-off case of torture in an emergency situation; what is not under consideration in this section is legalised, or otherwise institutionalised, torture.

The central claim of the proponents of “practical moral absolutes” seems to be an empirical one; ticking bomb scenarios, such as our above-described terrorist case – and other relevant one-off emergencies such as our above-described police beating case in which torture seems to be justified – have not, and will not, happen.

The first point to be made is simply to reiterate that some of these scenarios – such as police officers beating up kidnappers and other offenders to rescue children – are not only realistic, they are real; they have actually happened. What of the ticking bomb scenario in particular? As stated above, it is by no means self-evident that this kind of scenario is entirely fanciful. Here it can be conceded that there is no guarantee that torture would succeed in saving the lives of (to revert to our specific ticking bomb scenario) thousands of Londoners. This is because the person tortured might not talk or he might talk too late or he might provide false or misleading information. However, it should be noted that the police know that the offender has committed the offence and is in a position to provide the needed information, i.e. the police know that the offender is guilty. Moreover, the information being sought is checkable; if the terrorist gives the correct location of the bomb then the police will find it – if he does not, then they will not find it. Further, the police have no alternative methods by which to avoid the death of the innocent. Given what is at stake and given the fact that the police know the offenders are guilty, the police are, it seems, justified in the use of torture, notwithstanding a degree of uncertainty in relation to the likelihood of success. (See Thiessen (2010) for arguments that so-called enhanced interrogation techniques do in fact work.)

The second point is that, practicalities notwithstanding, the proponents of “practical moral absolutes” still need to offer a principled account of the moral limits to torture – an account of torture, so to speak, in the abstract. And these accounts could differ from one advocate of practical moral absolutes to another. For example, one advocate might accept that it would be morally permissible to torture the terrorist to save the lives of ten innocent people threatened by a non-nuclear explosive device, whereas another advocate might reject this on the grounds that ten lives are too few. What the two advocates would have in common is the belief that even the revised ticking-bomb scenario involving only the death of ten innocent people is, nevertheless, a fanciful scenario that has not occurred, and will not ever occur. In short, different advocates of practical absolutism can ascribe different moral weight to different moral considerations, and we need to know what these weightings are for any given advocate. For otherwise it is extremely difficult to assess the validity or plausibility of the associated general empirical claim that in practice no act of torture has ever been, nor ever will be, morally justified. Roughly speaking, the greater the moral weight that is given by the practical moral absolutist to refraining from torture – this moral weight considered both in itself and relative to other moral considerations – the more plausible the associated general empirical claim becomes. On the other hand, the greater the moral weight that is given to the principle of refraining from torture, the less plausible the narrowly moral claims of the practical absolutist become – indeed, at the limit the practical absolutist becomes a moral absolutist tout court .

At any rate, the general point to be made here is that the practical moral absolutist owes us a principled account of the moral weight to be attached to refraining from torture relative to other moral considerations. For without it we are unable to adequately assess whether or not putative counter-examples to this position are really counter-examples or not. It is not good enough for the practical moral absolutist just to give the thumbs down to any putative counter-example that is offered.

The third general point against the practical moral absolutist is to reiterate that it has already been argued that torture is not the morally worst act that anyone could, or indeed has or will, perform. If this is correct, then it is plausible that there will be at least some scenarios in which one will be forced to choose between two evils, the lesser one of which is torture. Indeed, the above-described police beating scenario (certainly) and the ticking bomb scenario (possibly) are cases in point.

We have seen that there are likely to exist, in the real world, one-off emergency situations in which arguably torture is, all things considered, the morally best action to perform. It may seem to follow that institutional arrangements should be in place to facilitate torture in such situations. However, it is perfectly consistent to concede that torture might be morally justifiable in certain one-off emergency situations and yet oppose any legalization or institutionalization of torture.

Luban (2005) and (2014), and Waldron (2005), in particular, have drawn attention to the moral inconsistency and inherent danger in liberal democratic states legalising and institutionalising torture, a practice that strikes at the very heart of the fundamental liberal value of individual autonomy (see also Conrad et al 2018; Wolfendale 2019; Gujral 2020). They have also detailed the tendency for a torture culture to develop in organisations in which torture is legalised or tolerated, a culture in which the excesses of torturing the innocent and the like take place, as in the US army detention centres in Abu Ghraib in Iraq and Guantanamo Bay in Cuba (Senate Select Committee on Intelligence 2014), and in the Israeli secret service (General Security Service). Nevertheless, it is useful to sketch a general argument against the legalisation and institutionalisation of torture. The argument is consistent with, indeed at some points it is more or less the same as, the arguments of Luban and Waldron. However, the argument has some novel elements, not the least of which is the claim that the view that torture is morally justified in some extreme emergencies is compatible with the view that torture ought not to be legalised and institutionalised.

Most of the theorists who oppose the legalisation and institutionalisation of torture also (at least implicitly) reject the possibility, let alone actuality, of one-off emergencies in which torture is morally justified. The argument has been put that there are, or could well be, such one-off extreme emergencies in which torture is morally justified. So the first task here is to demonstrate that these two claims are not inconsistent. Specifically, it needs to be shown that it does not follow from the fact that torture is in some extreme emergencies morally justified, that torture ought to be legalised, or otherwise institutionalised. So the claim is that it is just a mistake to assume that what morality requires or permits in a given situation must be identical with what the law requires or permits in that situation. This calls for some explanation.

The law in particular, and social institutions more generally, are blunt instruments. They are designed to deal with recurring situations confronted by numerous institutional actors over relatively long periods of time. Laws abstract away from differences between situations across space and time, and differences between institutional actors across space and time. The law, therefore, consists of a set of generalisations to which the particular situation must be made to fit. Hence, if you exceed the speed limit you are liable for a fine, even though you were only 10 kph above the speed limit, you have a superior car, you are a superior driver, there was no other traffic on the road, the road conditions were perfect, and therefore the chances of you having an accident were actually less than would be the case for most other people most of the time driving at or under the speed limit. [ 16 ]

By contrast with the law, morality is a sharp instrument. Morality can be, and typically ought to be, made to apply to a given situation in all its particularity. (This is, of course, not to say that there are not recurring moral situations in respect of which the same moral judgment should be made, nor is it to say that morality does not need to help itself to generalisations.) Accordingly, what might be, all things considered, the morally best action for an agent to perform in some one-off, i.e. non-recurring, situation might not be an action that should be made lawful. Consider the real-life example of the five sailors on a raft in the middle of the ocean and without food. Four of them decide to eat the fifth – the cabin boy – in order to survive. [ 17 ] This is a case of both murder and cannibalism. Was it morally permissible to kill and eat the boy, given the alternative was the death of all five sailors? Clearly it was not pro tanto morally permissible, especially given the cabin boy was entirely innocent; but perhaps it was morally permissible all things considered. And even if it was not morally permissible all things considered, nevertheless, arguably it was morally excusable, and indeed the sailors, although convicted of murder and cannibalism, had their sentence commuted in recognition of this. But there was no suggestion that the laws against murder and cannibalism admit of an exception in such an extreme case; the sailors were convicted and sentenced for murder and cannibalism. Again, consider an exceptionless law against desertion from the battlefield in time of war. Perhaps a soldier is morally justified in deserting his fellow soldiers, given that he learns of the more morally pressing need for him to care for his wife who has contracted some life-threatening disease back home. However, the law against desertion will not, and should not, be changed to allow desertion in such cases.

Some theorists (Allhoff 2012) have invoked the legal principle of necessity in order to establish that torture in some extreme circumstances is or should be legally permissible (Gaeta 2004; Hunsinger 2008). However, the legal principle of necessity is inherently (and intentionally) vague. It typically applies to situations in which someone has infringed a law, but done so to avert a greater evil which is otherwise unavoidable. Here the notion of greater evil is radically underspecified and, therefore, in need of interpretation by the courts in any given case. Moreover, the application of the principle of legal necessity in cases in which it is state operatives who invoke it, such as in cases of torture by the members of security agencies, is fraught with danger. For the protection of the rights of citizens not to be tortured is likely to be significantly reduced if there is a legal justification for torture available to members of security agencies. Given the inherent vagueness of the notion of lesser evil, there is the potential in their adjudications for judges to favour the members of security agencies at the expense of ordinary citizens.

We will shortly turn to arguments to the effect that while there may well be morally justifiable one-off cases of torturing the guilty, it does not follow that torture should ever be legalised, even in such cases. However, it has been suggested by Steinhoff (2010) and (2013) that torturing the guilty can in many cases be understood as torturing the guilty in self-defence. If so, presumably torturing the guilty could reasonably be legalised on the grounds that torturing in self-defence is analogous to killing in self-defence, and self-defence is an explicit legal justification for killing in most jurisdictions. Steinhoff has also suggested (2006, 2013) that legalisation would not necessarily lead to institutionalisation in the sense of the creation of the institutional role of a torturer, the routinisation and bureaucratisation of the process of torture, and so on.

Torturing the guilty in self-defence is arguably something of a misnomer. Firstly, it is not really self defence per se, but rather the saving of the lives of others. After all, generally the would-be torturer’s life is not at risk, and even if it is at risk in a particular location, as in some terrorist bombing scenarios, then presumably the risk can be averted by the torturer simply abandoning his immobilised victim and fleeing the area. Note that on many accounts self defence is a more readily acceptable moral justification or excuse for killing an attacker than is defending the lives of others (at least, others who are not members of one’s family or close friends). Secondly, torturing in order to save life is inherently unreliable by comparison with killing in self-defence. This is because killing an attacker is directly connected to the desired outcome of removing the threat; indeed, to kill the attacker is to remove the threat. This is not so with torture. Rather torturing is one action and removing the threat (e.g., disarming the ticking bomb) is another act necessarily at some causal remove from the first action. Moreover, the putative (necessarily indirect) causal connections between the two actions may well not obtain. Thirdly, torturing the guilty to save innocent lives does not typically involve an imminent threat, as typically must be the case in instances of lawful self-defence in well-ordered jurisdictions. For the threat posed by (say) a terrorist-bomber is either imminent, as in the case of a suicide-bomber, in which case there is no time to torture anyone; or the threat is not imminent in which case there is time to pursue other options, such as intercepting the communications of other members of the terrorist cell and, thereby, locating the bomb. Again, consider typical kidnapping cases. Either the kidnapper is not in custody in which case he or she cannot be tortured; or the kidnapper is in custody in which case the threat to the kidnapped child from the kidnapper in custody is not imminent (the child is either dead or is alive and no longer under threat from the kidnapper in custody). Naturally, as we saw in the last section, there may well be a very small number of exceptional cases in which the threat is more or less imminent and torture is, nevertheless, a realistic option for removing the threat (and, indeed, the only option). Accordingly, this small number of exceptional cases might be analogous to killing in self-defence. Moreover, in some torturing the guilty scenarios the all things considered morally best option might be to torture the guilty party; indeed the general argument for the latter proposition was outlined in the last section. However, this does not demonstrate that justified torturing of the guilty to save the innocent they threaten is essentially a species of justified self-defence and that, therefore, it ought to be legalised.

It is consistent with the rejection of explicit legalisation of the torturing of the guilty that, as noted above, there be some form of legal redress in the very small number of exceptional cases of torturing the guilty in which the threat to the innocent is imminent (and torture is morally justifiable all things considered). These forms of legal redress for the torturer might include the existence of mitigating circumstances or the application of the legal principle of necessity – since the cases in question involve a genuinely dilemmatic situation in which the least harmful of the available options was chosen and chosen to the advantage of the innocent rather than the guilty.

The upshot of this discussion is that torturing the guilty to save the lives of the innocent is not analogous to killing in self-defence. Specifically, the legalisation of torturing the guilty faces the problem of imminence; unlike killing in self-defence it almost never involves an imminent threat. Accordingly, the legalisation of torturing the guilty is likely to be regarded as extremely problematic, since presumably legalisation is likely to result in institutionalisation. Consider in this connection police killing in defence of the lives of innocent citizens. This involves the creation of the institutional role of police sniper with all its attendant training, development and implementation of procedures (including the requirement that the threat be imminent before shots are fired) and, more generally, bureaucratisation. This is, of course, not to say that (as argued above) certain one-off cases of torturing the guilty might not be both morally justifiable and legally excusable (or otherwise be able to avail themselves of mitigating circumstances).

As already noted and contrary to the above-mentioned presumption, Steinhoff insists that legalization does not in fact necessarily lead to institutionalization. Specifically, he argues that the legalization of killing in self-defence has not led to its institutionalization, and he also claims (as we have seen) that torturing in self-defence is akin to killing in self-defence. As we have seen, the proposition that torturing the guilty to save lives is analogous to killing in self-defence is open to question and there is surely at least a presumption that legalisation will lead to institutionalisation. However, there is a further more specific point to be made here in relation to legalisation and institutionalisation. It is true that individualistic killing in self-defence on the part of private citizens has not led to institutionalization, but this is because it is an individual, non-institutional activity which is subject to stringent institutional accountability mechanisms (at least in well-ordered liberal democratic states). But it is extremely doubtful that an individual citizen is ever going to be in a situation where he has to defend his life by torturing his attacker. What we are talking about in this debate is the killing or torturing by institutional actors, e.g., police, of persons who are attacking third parties (whether by killing, kidnapping etc.); the third parties in question are, typically, members of the community. As noted above, the legalized killing by police of third parties has been institutionalized (police snipers). So evidently killing in self-defence does not constitute a relevant case in which there is legalization but not institutionalization.

Whether or not torture is likely to be institutionalised once legalised, or is even likely to be institutionalised if not actively resisted on an ongoing basis, is partly a matter of the motivational drivers in play. And unfortunately, even in liberal democracies, when the threat to the community is regarded as substantial, institutional actors (such as police and military personnel) have been willing to engage in routinised extra-judicial killing (India, today) and more than willing to engage in routinised torture (use of the third degree by police agencies world-wide). In doing so, they have typically appealed to a self-defence moral justification (‘We had to torture/kill in order to save lives’). Moreover, in the case of the extra-judicial killings they have typically helped themselves to and often been aided by the legal justification of self-defence – ‘the Naxalites (in India) shot at us first and we fired back in self-defence’ (albeit what has also been revealed over time is a culture of ‘shoot first and ask questions later’). Torture is much more prevalent than killing in part because (as Steinhoff argues) torture is rightly regarded as not necessarily as bad as killing (criminals tortured by police are typically able to carry on with their lives, even if in prison) and perhaps also in part because torture is less susceptible to the available accountability measures (you cannot hide corpses, at least in liberal democracies). In short, there is good reason to believe that legalizing torture in contexts in which there is a substantial threat to the community will lead to its institutionalization.

It has been noted on a number of occasions that the law and morality can and do come apart. Moreover, it is plausible that sometimes they ought to come apart. A further point to be elaborated here pertains to the nature of the sub-institution of torture within the larger military, police, and correctional institutions. There is a need to begin with a few preliminary remarks about social institutions. [ 18 ]

Social institutions, including legal institutions and military, police, and correctional organisations, have both a massive collective inertia and a massive collective momentum by virtue of the participation in them of many agents over a long time who: (a) pursue the same goals; (b) occupy the same roles and, therefore, perform the same tasks and follow the same rules and procedures, and; (c) share the same culture. Accordingly, social institutions and their component organisations are like very large ocean liners that cannot slow down, speed up, or change direction very easily. It follows that very careful thought needs to be given to the establishment of any additional structure of roles and associated practices that is to be woven into the fabric of the institution. For such an additional (embodied) role structure, once it becomes, so to speak, an integrated working part of the larger institution, is likely to be extremely difficult to remove; it is now a beneficiary of the inertia of the institution. Moreover such an additional, but now integrated, role structure participates in, and influences the direction of, the institution; it is now a contributing element to the momentum of the institution.

So what can be said of the likely institutional fit between military, police, and correctional institutions on the one hand, and the sub-institution of torture on the other? The role structure of this sub-institution consists of torturers, torturer trainers, medical personnel who assist torturers, and the like. The core practice of torture has been described in an earlier section.

The practice of torture is endemic in many, perhaps most, military, police, and correctional institutions in the world today, including democracies such as India. It is only in recent times and with great difficulty that torture in Australian prisons and police services, for example, has been largely eliminated, or at least very significantly reduced. The Australian, British, American, and like cases are important not only because they illustrate that torture can be endemic to liberal democratic institutions, but also because they demonstrate that liberal democratic institutions are able – given the political will, suitable re-education and training, stringent accountability mechanisms, etc. – to successfully combat a culture of torture.

Let us look at some of the evidence from the past. Consider police organisations in liberal democracies such as the USA. The influential Report on Lawlessness in Law Enforcement from the National Commission on Law Observance and Enforcement, also know as the Wickersham Commission, in 1931 found that the use of the third degree was widespread throughout police organisations in the USA (National Commission on Law Observance and Enforcement 1931, 4). More recently, we have the Rampart Reports documenting extensive police brutality – including extra-judicial killings (Parks 2000, 87–109; Rampart Independent Review Panel 2000, 11–14) – and, in the wake of the Rodney King beating, the report of the “Christopher Commission” into the Los Angeles Police Department which found that a significant number of LAPD officers “repetitively use excessive force against the public and persistently ignore the written guidelines of the Department regarding force” (Independent Commission on the Los Angeles Police Department 1991, 9–12). In India – another liberal democratic state, albeit one at an earlier stage of economic development – police brutality is institutionalised. According to a recent Human Rights Watch Report (Human Rights Watch 2009: 14), “police violence and misconduct are … widespread and rooted in institutional practice”. Arvind Verma, an authority on policing in India, states that “Misuse of force, false-encounter killings (execution by police) and routine use of torture in extorting confessions are common with the police departments” (Verma 2011: 5).

Now consider prisons in liberal democracies. In the USA in the past widespread beatings and torture of prisoners (e.g., use of electrodes on prisoners’ private parts) has been documented in multiple jurisdictions, including Arkansas, Louisiana, Mississippi, Virginia and Florida. See, for example, Murton and Hyams’ classic work, Inside Prison, USA (Murton and Hyams 1969). In Australia there was the Nagle Royal Commission into New South Wales Prisons. Nagle reported systematic bashings in NSW prisons. He said of Grafton Gaol, in particular, that it had a “regime of terror”, “…brutal, savage and sometimes sadistic” (Nagle 1978: 108). He concluded thus: “It is the view of the Commission that every prison officer who served at Grafton during the time it was used as a gaol for intractables must have known of its brutal regime. The majority of them, if not all, would have taken part in the illegal assaults on prisoners” (Nagle 1978: 119).

When it comes to authoritarian regimes matters are, of course, much worse. Let us set aside the infamous Soviet Gulags under Stalin and also Hitler’s concentration camps, and rather consider some more recent examples. The South African Truth and Reconciliation Commission stated that under the apartheid regime, “torture was used systematically by the Security Branch, both as a means of obtaining information and of terrorising detainees and activists. Torture was not confined to particular police stations, particular regions or particular individual police officers” (TRC 1998: 187). In Chile the National Commission on Truth and Reconciliation (NCTR 1993: 1122) detailed over 2000 victims of human rights violations by the security forces of the Pinochet regime of which victims approximately half were killed (hundreds tortured to death) and the remaining half disappeared after arrest. According to Juan Mendez (a UN Special Advisor who was himself tortured during the Argentinean military dictatorship): “Torture became systematic and pervasive during the military dictatorships of the 1970s and 1980s, but it would be a mistake to trace its origins only as far as this dark era. In fact, torture was used by dictatorial as well as elected but authoritarian governments throughout the twentieth century” (Mendez 2005: 56).

In the light of the evidence it would be a massive understatement to say that historically the sub-institution of torture – whether in a lawful or unlawful form – has been no stranger to military, police, and correctional institutions. Further, there is now a great deal of empirical evidence that in institutional environments in which torture is routinely practised it has a massive impact on other practices and on moral attitudes. For example, in police organisations in which torture is routinely used the quality of investigations and, in particular, of interviewing of suspects, tends to be low. Careful, logically based, questioning on the basis of the available evidence is replaced by beating up suspects. Thus lower echelon police investigators in India often have little or no training in best practice interviewing and (as noted above) they routinely use the third degree. Again, Baldwin’s findings based on hundreds of taped interviews indicate that the interviewing skills of UK police during the period of the infamous police use of the third degree against the Birmingham Six, Guildford Four and Maguire Seven would have been quite poor (Baldwin 1993). Police in organisations in which offenders are routinely tortured do not, unsurprisingly, tend to develop respect for the moral rights of offenders, suspects, or even witnesses. This is entirely consistent with the excesses detailed by Luban and Waldron in the US military detention centres in Iraq and elsewhere, e.g., the Abu Ghraib scandal, and in the case of the interrogations of suspected terrorists by the Israeli secret service. Indeed, these excesses are to be expected.

And there is this further point. The prevalence of torture in numerous military, police, and correctional institutions throughout the world has taken place notwithstanding that for the most part it has been both unlawful and opposed by the citizenry.

It is to be concluded from all this that for the most part military, police, and correctional institutions are qua institutions very receptive to the practice of torture – even when it is unlawful – and that these institutions qua institutions would relatively easily incorporate the legalised sub-institution of torture; accordingly, it is very easy to legalise torture and thereby grow and develop a torture culture in military, police and correctional institutions. This does not mean that there are not important differences between, say, police services in authoritarian states and those in contemporary (though not necessarily historical) liberal democratic states; obviously there are. Nor does it mean that most, or even the majority, of the individuals who occupy roles in these institutions, whether in liberal democracies or elsewhere, are necessarily receptive qua individuals to engaging in the practice of torture; most of them might not be. However, most of them would not be torturing people; that would be done by a distinct minority, as in fact has usually been the case even in institutions in which torture is unlawful and endemic. The question is whether or not as individuals they would initially tolerate, and finally accept, the practice of torture, if it were legally and institutionally established; the suggestion is that the historical and comparative evidence is that they would, including in liberal democracies.

A additional conclusion to be drawn is that should the legalised sub-institution of torture be integrated into any of these institutions it would be very difficult to remove and would, even in liberal democracies, have a major impact on the direction, culture, and practices of these institutions. Again, this is what the historical and comparative empirical evidence tells, notwithstanding the initial and even continuing aversion of many, perhaps most, of the individuals in these institutions to torture as such. Consider the Israeli case. Limited forms of torture were legal in Israel prior to 1999, but illegal post 1999. However, evidently torture has by no means been eradicated post 1999. According to the Public Committee Against Torture in Israel (PCATI), reporting on the period between September 2001 and April 2003: “The affidavits and testimonies taken by attorneys and fieldworkers… support the conclusions …violence, painful tying, humiliations and many other forms of ill-treatment, including detention under inhuman conditions, are a matter of course….The bodies which are supposed to keep the GSS [General Security Service] under scrutiny and ensure that interrogations are conducted lawfully act, instead, as rubberstamps for decisions by the GSS…The State Prosecutor’s Office transfers the interrogees’ complaints to a GSS agent for investigation and it is little wonder that it has not found in even a single case that GSS agents tortured a Palestinian ‘unnecessarily’” (PCATI 2003).

The deeper explanation for the prevalence of torture cultures and the difficulty of eradicating institutionalised torture is no doubt very complex, but presumably it consists in part in the following elements: (1) moral docility, as opposed to physical docility, is a feature of individuals housed in, and materially dependent upon, large, hierarchical, bureaucratic organisations with strong, relatively homogenous cultures; (2) the roles of soldier, police officer, and prison warder necessarily involve the routine use of coercive, and even deadly, force against dangerous criminals, enemy soldiers, or terrorists, and therefore undertaking these roles inevitably results in a degree of moral de-sensitisation and a sense of moral ambiguity when it comes to torturing criminals and/or terrorists; (3) torture is an exercise of enormous power, and power is deeply seductive to many people (and much less dangerous than shooting at armed enemy combatants or trying to arrest or subdue violent criminals).

Armed with these observations on the difference between law and morality, and on the nature of the sub-institution of torture in military, police, and correctional institutions, what now can be said on the question as to whether or not to legalise and institutionalise torture in contemporary well-ordered liberal democratic states undergoing a lengthy period of attacks from terrorist organisations?

As we saw above, torture is a terrorist tactic. Indeed, arguably it is the terrorist tactic par excellence . Detonating bombs that kill the innocent has come to be regarded as the quintessential terrorist tactic. But this is presumably because terrorism has implausibly come to be identified only with non-state terrorism. At any rate, the point to be made here is that torture is a terrorist tactic, and for a liberal democracy to legalise and institutionalise it, i.e. weave the practice of torture into the very fabric of liberal democratic institutions, would be both an inherent contradiction – torture being an extreme assault on individual autonomy – and, given what we know about the practice of torture in military, police, and correctional institutions, highly damaging to those liberal democratic institutions. It would be equivalent to a liberal democracy legalising and institutionalising slavery on the grounds, say, of economic necessity. Legalised and institutionalised slavery is inconsistent with liberal democracy, as is legalised and institutionalised torture. So if legalised and institutionalised slavery and/or legalised and institutionalised torture are necessary because morally required, then liberal democracy is not possible in anything other than an attenuated form. But of course neither legalised/institutionalised slavery nor legalised/institutionalised torture is morally required, quite the contrary. At best, torture is morally justified in some one-off emergencies – just as murder and cannibalism might be morally excusable in a one-off emergency on the high seas, or desertion from the field of battle might be morally justifiable given a one-off emergency back home – but nothing follows as far as the legalisation/institutionalisation of torture is concerned.

A final point here concerns the proposition that, absent legalised/institutional torture, unlawful endemic torture in the security agencies of contemporary liberal democracies confronting terrorism is inevitable. The implication here is that unless legalised, torture will become endemic in these agencies. It has already been argued that legalisation/institutionalisation of torture would be profoundly damaging to liberal democratic institutions. Assume this is correct; it does not follow from this that a torture culture will not come to exist in those agencies in the context of torture being unlawful. Nor does it follow that an unlawful torture culture, indeed an unlawful sub-institution of torture, is inevitable. Here there is a tendency to use the kind of argument that is plausible in relation to, say, the prohibition of alcohol. It is better to legalise alcohol, because then it can be contained and controlled. This form of argument used in relation to torture is spurious. Consuming alcohol to excess is not morally equivalent to torture, and we do not legalise the use of alcohol in emergency situations only. Legalising the use of torture in extreme emergencies would be much more akin to legalising perjury in extreme situations. As with torture – and unlike alcohol – perjury is only morally justified in some extreme one-off situations. [ 19 ] However, no-one is seriously considering legalising perjury in one-off extreme situations (at least to my knowledge), and with good reason – to do so would strike at the very heart of the legal system.

The fact is that the recent history of police, military, and other organisations in liberal democracies has demonstrated that torture cultures and sub-institutions of torture can be more or less eliminated, albeit with considerable difficulty. The elimination of torture cultures and sub-institutions can only be achieved if torture is unlawful, the community and the political and organisational leadership are strongly opposed to it, police officers and other relevant institutional actors are appropriately educated and trained, and stringent accountability mechanisms, e.g., video-recording of interviews, close-circuit TV cameras in cells, external oversight bodies, are put in place. It is surely obvious that to re-introduce and indeed protect the practice of torture, by legalising and institutionalising it, would be to catapult the security agencies of liberal democracies back into the dark ages from whence they came.

The discussion has focussed on the legalisation and institutionalisation of torture, where the practice of torture is understood in general terms; it ought to be now obvious why torture should not be legalised. However, some commentators, notably Alan Dershowitz, have argued that legalised torture could be justified, if the torture in question was restricted to extreme emergency situations and subjected to appropriate accountability mechanisms. Specifically, he has argued for torture warrants of the kind introduced for a time in Israel (Dershowitz 2003, 2004; and Wisnewski 2008).

The notion of torture warrants is supposedly analogous to surveillance and telephone interception warrants issued to police by a magistrate or other judicial officer. The idea is that privacy is a fundamental right but it can be infringed under certain conditions, such as reasonable suspicion that the person whose privacy right is to be infringed is engaged in serious criminal activity, there is no alternative way to acquire the necessary information to convict him/her, and so on. In this kind of set-up the magistrate, not the police, makes the decision as to whether or not these conditions obtain. Consequently, the infringements of privacy rights are restricted, and subject to stringent accountability mechanisms.

However, morally speaking, torture warrants are entirely different from telephone interception or surveillance warrants. First, torture is a far greater evil than the infringement of privacy. For one thing, having one’s phone tapped or movements filmed is inherently much less distressing, harmful and morally repugnant than the physical suffering and loss of autonomy involved in being strapped to a chair and, say, having someone drill into an unanesthetised tooth. On the spectrum of evils, torture is closer to murder/killing than it is to the infringement of privacy. For another thing, torture is a far more dangerous practice than infringing privacy. For the degree of the infringement of privacy can be minimised, e.g., the information gained can relatively easily be kept strictly confidential by the police; moreover, there is no inherent reason for the police to illicitly widen a given infringement of privacy by breaching confidentiality. But in practice torture cannot be restricted likewise. The methods of torture and the process of torture exist on a continuum, and there is often an inherent reason to ‘push the envelope’ and inflict ever more severe forms of physical suffering on victims; so-called ‘torture lite’ becomes full-blooded, no holds-barred torture. One of the consequences of this continuum of torture is the ever-present possibility that the victims of torture will not simply be tortured, but rather be murdered; and in point of fact numerous people have died in the course of being tortured.

Second, as has already been argued, there is an inherent institutional receptivity of military, police, and correctional institutions to the practice of torture; a receptivity which is such that torture cultures will grow and flourish, notwithstanding Dershowitz’s proposal that only tightly controlled and highly restricted forms of torture are to be legally admissible. This institutional receptivity has the consequence that inevitably large numbers of innocent people will be tortured – as has happened in Israel (see PCATI 2003). Indeed, even under tightly controlled and highly restricted forms of torture some innocent persons will inevitably be tortured – just as the privacy of innocent people is infringed under the existing telephone and surveillance warrant systems. Arguably, the infringement of the privacy of some – in fact, many – innocent persons is a price that we ought to be willing to pay for the sake of preventing serious crimes. However, it would be preposterous to argue that (inadvertently?) torturing numerous innocent people is a reasonable price to pay in return for the information provided by those of the tortured who are in fact guilty.

Third, the information gained by wire-tapping or surveillance has in general far greater utility than that gained by means of the practice of torture – certainly by the tightly controlled and highly restricted forms of torture of the kind envisaged by Dershowitz. Indeed, it is by no means clear that the utility – in terms of saving lives (and leaving aside the costs) – of the system of legalised torture warrants will be very high. (In Israel, to repeat the example, it does not appear to have been particularly high.) This is so for two reasons. One reason is that torture victims typically tell the torturer whatever they think he wants to hear, e.g., they are happy to implicate others who are in fact innocent in order to bring an end to their own agony. And even in relation to desired checkable information there is often the problem of knowing whether or not the victim of torture is holding out or does not really know; this is especially the case with hardened terrorists. So by comparison with telephone and surveillance warrants, torture warrants are likely to yield unreliable information; there is a serious question about the quality of much of the information provided under a system of torture warrants. A further reason to disparage the utility of torture warrants is that, again unlike telephone and surveillance warrants, torture warrants are to be issued only in extreme emergencies. By contrast, telephone interception and surveillance warrants are issued as a matter of routine, albeit only under certain (recurring) conditions. Accordingly, the volume of information capable of being provided under a system of torture warrants is extremely limited. In short, over time the torture warrant system is likely only to yield an extremely small quantity of reliable information. This overall likely lack of utility of the torture warrant system qua institution is important to keep in mind in the context of a protracted struggle against terrorism involving ongoing loss of life on both sides. Here the torture warrant system stands in sharp contrast to telephone interception and surveillance warrant systems. Moreover, it is precisely because the set of conditions under which it is reasonable and effective to infringe privacy rights recurs, that infringements of privacy rights by police can reasonably be legalised and institutionalised, e.g., by means of a warrant system. Arguably, the proponents of the torture warrant system have made the mistake of proposing a legal/institutional solution to what ought to be regarded as a one-off moral problem; [ 20 ] hence the inadequacy of their proposal.

At any rate, the conclusion must be that any attempt to compare torture warrants to surveillance or interception warrants is entirely spurious. Torture is a very different beast.

In the light of the above three points concerning torture warrants that have just been made in the comparison between these and surveillance and interception warrants, the inevitable conclusion is that the practice of torture could not be contained under a system of legalised torture warrants and the consequences of its not being contained would be horrific. Moreover, as noted above, and argued by Luban, Waldron and others, the damage to liberal institutions would be incalculable. Finally, the benefits of a system of legalised torture warrants over the longer term are likely to be slight; and certainly easily outweighed by the costs. So Dershowitz is entirely misguided in his advocacy of torture warrants. Indeed, as repeatedly mentioned above, we have the example of Israel’s use, or rather abuse, of this system to provide specific empirical evidence against the introduction of torture warrants.

So torture warrants are highly undesirable, indeed a threat to liberal democratic institutions. Moreover, torture warrants are unnecessary. As has been argued above, there may well be one-off emergencies in which the use of torture is morally justifiable. In those cases, the relevant public officials must bite the bullet and do what is morally required, e.g., torture the terrorist to save thousands of innocent people. In such an emergency, the military or police officers involved will need to break the law on this one occasion. But in itself this is a small price to pay; and a price the police, the military and the politicians have shown themselves only too willing to pay in situations that are far from emergencies.

One final matter. What should be done to the military officer, police officer, or other public official who tortures the terrorist if – after saving the city – their crime is discovered? Quite clearly he (or she) should resign or be dismissed from their position; public institutions cannot suffer among their ranks those who commit serious crimes. Further, the public official in question must be tried, convicted, and sentenced for committing the crime of torture. [ 21 ] Obviously, there are (to say the least) mitigating circumstances, and the sentence should be commuted to, say, one day in prison. Would public officials be prepared to act to save thousands of innocent lives, if they knew they might lose their job and/or suffer some minor punishment? Presumably many would be prepared to so act in these circumstances. On the other hand, perhaps many public officials would never set aside their interest in keeping their jobs and avoiding minor punishments in order to save innocent lives. If so, this is not a consideration in favour of legalising torture. For surely the consequences of setting up a legalised torture chamber and putting such self-interested and uncaring persons in charge of it are likely to be horrendous

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How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

• U.N., 1984, U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment .
• Final Report of the Independent Panel to Review DoD Detention Operations [PDF]
• Stanford Prison Experiment
• Fay-Jones Report on Abu Ghraib Abuses [PDF]

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Is Torture Always Morally Wrong?

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Safety is as much an American value as freedom.

Almost five years ago, I wrote a piece for the journal World Affairs that in the current climate of recrimination would no doubt be considered “pro-torture,” though my aim was to look rationally at a subject that tends to elicit emotional outcries rather than careful thinking. The report of the Senate Intelligence Committee has provided us with an abundance of new information that wasn’t available before (“rectal feeding” has now entered the public discourse), but on the essential moral and philosophical issues, it really has nothing new to say. About these essential issues the arguments never change. I’d like to examine a few of them in the light of the Senate report and the public controversy that has ensued.

Is torture morally wrong at all times and under all circumstances?

Like all absolutist views, this one offers great comfort to its proponents because it absolves them of the necessity of thinking through both the complexities and ambiguities of particular situations and the actual consequences of their positions. Adherence to absolute principle trumps any reflection on how the real world works. In this sense, the anti-torture position is the equivalent of the famous — and inhumane — doctrine Fiat justitia ruat caelum , “let justice be done though the heavens fall.”

The well-known “ticking bomb scenario” is a necessary component of any serious debate over torture. What should the President of the United States do if he learns that a bomb is set to go off in a big city and the authorities have in their custody a man who probably knows its location? Or to raise the stakes: the bomb is a nuclear weapon and the suspect knows “with a high degree of certainty” where it is. The moral high ground is not necessarily occupied by those who would oppose torturing him.

Critics of the ticking bomb argument contend that the scenario is a fraud, science fiction, because it would never arise in the real world. Can anyone be sure? We’re not imagining aliens from outer space. How many years will it be before terrorists are able to smuggle nuclear-armed suitcase bombs into the United States? No one knows.

That is the future, but even speaking of the recent past, authorities were faced with a version of the ticking bomb following 9/11. Every day the president was receiving a report called the “threat matrix,” listing every threat to the United States within the past 24 hours, including possible targets and perpetrators, along with assessments of each threat’s credibility. George Tenet, then the head of the CIA, stated: “I’ve got reports of nuclear weapons in New York, apartment buildings that are gonna be blown up, planes that are going to fly into airports. … Plot lines that I don’t know — I don’t know what’s going on inside the United States.” Fears were at their utmost not only in the days and weeks after 9/11 but also one year later, on the anniversary of the attacks.

In “The Terror Presidency,” one of the most nuanced insider accounts to emerge from this period, Jack Goldsmith, the head of the Office of Legal Counsel from October 2003 to June 2004, describes the nonstop arguments that were going on within the Bush Administration between those who wanted to take whatever steps they considered necessary against terrorism and those who were concerned about balancing security with legality. Goldsmith is one of the real heroes of this time. He stood up to the whatever-it-takes mentality of Dick Cheney’s office and the Department of Justice in an effort to achieve a proper balance. Nonetheless, he also concludes his book by saying that for generations to come, the presidency “will be characterized by an unremitting fear of devastating attack, an obsession with preventing the attack, and a proclivity to act aggressively and preemptively to do so. The threats have such a firm foundation in possibility, and such a harrowing promise of enormous destruction that any responsible executive leader … must assume the worst.” That is to say, torture may not only be part of our past, it may also be part of our future.

What do we mean when we use the word “torture”?

In August 2002, the Justice Department delivered an opinion to provide legal cover for the interrogations of the CIA and other government officials, the notorious “torture memo.” It limited the definition of torture only to the kind of pain “associated with a sufficiently serious physical condition or injury such as death, organ failure or serious impairment of body functions.” It seemed to permit activities — like burning someone with cigarettes or pulling out his fingernails — that are so clearly torture by anyone’s definition that it reminds us why normal people hate the obfuscatory legalisms of lawyers. Goldsmith called the memo a “blank check,” and he rescinded it when he was in a position to do so.

But however hamfisted and self-serving the torture memo was, it was wrestling with a question that has tended to get lost in the current commotion. Interrogations can include a wide range of unpleasantness, but not all of it would necessarily be labeled “torture.” Is shaking a suspect torture? Or slapping him? What about solitary confinement? It seems wrong, a distortion of language, to use the same word for playing loud music in a suspect’s cell and subjecting him to genital mutilation. That is why the Convention Against Torture, the international agreement signed by the United States in 1988 under President Reagan, made a distinction between torture as such and what it called “cruel, inhuman and degrading treatment” that was not torture. That is also why supporters of the Senate report speak broadly of torture and why the opponents prefer the phrase “harsh interrogations.” The language matters.

Where should the line be drawn? No one can say. When the Senate ratified the Convention Against Torture, it defined “cruel, inhuman or degrading” as those acts that “shocked the conscience” — a hopelessly imprecise phrase dependent, among other things, on particular circumstances. Under the ticking bomb scenario, interrogators might go a long way before shocking the conscience (and, of course, as we are now witnessing, with the comfort of hindsight and with any sense of crisis dissipated, consciences are more easily shocked). Is waterboarding cruel and inhuman? Those members of Congress who learned about it when it was being employed don’t seem to have had their consciences shocked.

Does torture work?

Among anti-torture absolutists, it’s a widely held conviction that torture never works, and that any information a suspect might provide will be worthless. This is an assertion that serves two purposes. First, it closes down all discussion because if torture (or harsh interrogations) never works, then the only people who support it are either deluded or sadistic. Second, it enables the anti-torture absolutists to avoid any moral quandaries by melodramatically, even childishly, lining up all good things on one side of the ledger and all bad things on the other. “Torture Doesn’t Work” is a bedtime story. It’s obviously possible to believe that torture can work and still consider it immoral. That, at least, is an adult position. The problem with it is that it throws us back to the ticking-bomb scenario and the question of whether torture (however defined) is immoral under all circumstances.

There is a straightforward empirical issue here as well. One of the sharpest divisions among the reactions to the Senate report is between those who say no useful information was obtained from the CIA’s harsh interrogations and those who say American lives were saved because of the agency’s practices. The truth is that in the absence of startling new revelations, we will probably never know. But just because we may not be able to reach a firm conclusion about the CIA interrogations doesn’t mean we can’t state with confidence that torture does work — not in all cases and with everyone, but in some cases some of the time.

The claim that torture never works is in truth outlandish, flying in the face of the evidence. A bit of reading in the literature or a Google search will turn up example after example of effective torture. At the time I was writing my torture article, I happened to be looking at a book about a small group of German opponents to Hitler. When they were arrested by the SS and tortured, some of them held out and others broke. Sometimes the Nazi torture worked, sometimes it didn’t.

A different kind of evidence is provided by the French resistance to the Nazis. Cell members were instructed that if they were captured, they should try to hold out for at least 24 hours, long enough for the underground to make new arrangements and evade their Nazi pursuers. Try to imagine someone at a resistance meeting assuring his colleagues that they had nothing to worry about because torture never worked. It’s a ludicrous thought.

Finally, it’s useful to look at this question from the inside out. The first time I heard someone, a human rights activist, make the argument that torture didn’t work, I sat there wondering: Was I the only person among the 6-7 billion people on the planet who didn’t know if he would break under torture? Frankly, if I were a member of a resistance group, I’d have more confidence in those colleagues who were unsure how they would respond than those strutting around with barrel-chested confidence that they would never crack. The claim that torture doesn’t work indicates a remarkable lack of self-awareness and an enormous degree of self-regard.

Torture is unacceptable and unjustified ‘at all times’ underscore top UN officials

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Torture in any form, is absolutely unacceptable and can never be justified, top United Nations officials said on Tuesday, urging great support for victims worldwide.

In his message to mark the International Day in Support of Victims of Torture , Secretary-General Antonio Guterres said that the “absolute prohibition” of torture is “stipulated in unequivocal terms” as a foundational principle, including within the Universal Declaration of Human Rights .

“Much has been achieved in the fight against this and other cruel, inhuman and degrading punishment and treatment, yet more action is needed to eradicate torture fully,” he said.

“ Torture remains unacceptable and unjustified at all times , including during states of emergency, political instability, or even in a war.”

In the message, the Secretary-General also paid tribute to all who stand in solidarity with the victims of torture and their families, and underscored that the victims have the right to justice, rehabilitation and redress.

Commemorated annually on 26 June, the International Day in Support of Victims of Torture marks the moment in 1987, when the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment , came into effect.

The International Day also serves as a rallying cry for all stakeholders including UN Member States, civil society and individuals to unite in support of victims of torture and those who are still subjected to the ghastly practice. It also highlights the need for prompt and specialized rehabilitation programmes to help victims “make the transition from horror to healing.”

“It takes decades to restore this broken human being as a result of the effects of a pernicious attack on their body and their mind,” said High Commissioner Zeid in a separate message.

In his message , the UN rights chief also reiterated the vital role played by the Voluntary Fund for Victims of Torture, a unique victim-focused mechanism that channels funding for the assistance to victims of torture and their families that helps over 50,000 torture victims and their families every year.

The UN human rights chief, Zeid Ra’ad Al Hussein, also underlined the need for stable and peaceful States everywhere, to support victims of torture.

“If you do not pay attention” to the victims, he said, “and if you leave them unattended, they are the ones will keep the wounds of a State open because their suffering hasn’t been addressed.

The High Commissioner for Human Rights added that the Fund plays a “critical role in restoring some sense of humanity to societies and societies” where torture is still used.

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Article contents

The ethics of torture: definitions, history, and institutions.

• Rebecca Evans Rebecca Evans Department of Politics and International Relations, Ursinus College
• https://doi.org/10.1093/acrefore/9780190846626.013.326
• Published in print: 26 November 2012
• Published online: 11 January 2018
• This version: 30 January 2020
• Previous version

International law defines torture as the intentional infliction of intense suffering aimed at forcing someone to reveal information, punishing unwanted behavior or inspiring fear in a broader population. Since torture is banned under any and all circumstances, states go to great lengths to insist that their conduct does not qualify as torture. Officials seek to distance themselves legally and morally from an association with torture by using clean torture techniques that do not leave physical marks and by downplaying the seriousness of their methods, characterizing their interrogation techniques in euphemistic language that makes it possible to practice torture without admitting that they are doing so. Yet even supposedly lesser forms of abuse referred to as torture “lite” can have severe effects when they are employed in combination and for long periods. Fundamentally, torturous acts are designed to break a victim by demonstrating the victim’s utter powerlessness. Historically, torture was not only common in times of war and social upheaval, but it was also openly practiced in many societies as an integral part of the judicial system. Torture was seen as an effective technique for obtaining information as well as an appropriate punishment for the immoral and a useful deterrent against future misconduct. Since the end of World War II, torture has been rejected as a violation of basic human rights and publicly condemned by most countries in the world; international treaties such as the United Nations Convention Against Torture (CAT) require signatory parties to end torture within their territorial jurisdiction and to criminalize all acts of torture. Nonetheless, countries throughout the world continue to engage in ill-treatment and torture, often during times of national stress, when perceived others or out-group members are subjected to extreme interrogation. Although torture is employed by democratic and nondemocratic forms of government alike, empirical studies reveal that political regimes and institutions have a significant impact on the type of torture used and the duration of government support for torture. Effective democratic institutions like a free press and an independent judiciary make it more likely that cases of torture will be exposed and violators punished, and democratic governments with strong mechanisms for holding officials accountable are more likely to transition away from ill-treatment and torture of detainees, at least once violent challenges end. During periods of perceived threat, however, public intolerance of unwanted others makes it likely that democratic publics will condone if not encourage the use of torture against detained transnational terrorism suspects and other dissidents. Under such circumstances, independent judicial institutions may incentivize officials to practice torture more covertly. Non-democratic countries are more likely to flout human rights treaties such as the CAT, signing such agreements as a means of deflecting criticism but continuing to employ torture against dissidents. Even liberal democracies are found to have difficulty complying with certain international human rights treaty obligations, especially when information about violations—as in the case of torture—tends to be hidden. The resulting impunity makes it difficult to put an end to torture.

• definitions of torture
• torture lite
• history of torture
• legal abolition of torture
• institutional and political influences on the use of torture

Updated in this version

Revised to include new scholarship on the effectiveness of torture, including testimonials from officials involved in interrogations, empirical studies, and updated data on public opinion; new subtitle, keywords, section headings, and references.

Introduction

Once accepted as a legitimate judicial practice, torture has come to be widely condemned as unacceptable. The atrocities of World War II led the framers of the 1948 Universal Declaration of Human Rights to include a prohibition against torture, stipulating in unqualified terms that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (Article 5). Similarly, the Geneva Conventions, which were expanded and revised in 1949 , not only provided protection for prisoners of war and civilians but also banned the use of torture and cruelty against “unlawful” combatants as “outrages against personal dignity” (Fourth Geneva Convention, Article 3). Since that time, various international conventions have made the ban on torture an absolute moral imperative, assigning it the status of a peremptory norm ( jus cogens ) that is widely considered to be binding on all states, whether they have ratified a particular treaty or not. The 1966 International Covenant on Civil and Political Rights prohibited torture even “during public emergencies that threaten the life of the nation” (Articles 4 and 7). Similarly, the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment insisted that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture” (Article 2). In 1998 the International Criminal Tribunal for Yugoslavia ruled in the case of the Prosecutor v. Anto Furundzija that the jus cogens value of the prohibition against torture meant that national measures authorizing or condoning torture or absolving perpetrators through amnesty laws are impermissible; furthermore, the court ruled that every state is entitled to investigate, prosecute, and punish or extradite individuals accused of torture who are present in a territory under its jurisdiction (de Wet, 2004 , p. 98). This ruling was upheld in the landmark Pinochet case, in which the British House of Lords divested former Chilean dictator Augusto Pinochet of his sovereign immunity and ruled that even heads of state can be held accountable for violating crimes against humanity, including the prohibition against torture (Evans, 2006 ).

Yet just as considerations of political expediency led the British government to allow General Pinochet to return to Chile rather than be extradited to Spain to stand trial, governments and international courts have not consistently upheld the prohibition against torture. Moreover, torture continues to be practiced by many countries throughout the world, including leading democracies. In 2014 , 155 countries have ratified the Convention Against Torture, but instances of torture or other ill-treatment were documented in 141 countries (Amnesty International, 2014 ). Few countries openly acknowledge employing such practices, resorting to a variety of strategies to circumvent the legal prohibition against torture, including denials that given treatments constitute torture, plausible deniability, and torture by proxy. For example, though the George W. Bush administration denied using torture against detainees in the “war on terror” launched after September 11, 2001 , its clandestine detention program and use of brutal interrogation techniques defied such public claims (Senate Select Committee on Intelligence, 2014 ; for a fuller discussion, see Evans 2019 ).

International law and universal human rights norms symbolize modern progress toward banning the use of torture as well as cruel, inhuman or degrading treatment or punishment. Yet the continued use of torture suggests that protections remain vulnerable to state interests. Although torture is no longer used as a spectacle of state power, it continues as a practice hidden in plain sight. By downplaying the physical and psychological harm caused by interrogation methods and questioning the credibility of victims, governments maintain legal and moral respectability while simultaneously inflicting tortuous experiences in an attempt to uncover information to prevent future attacks.

This article begins by laying out the legal definition of torture and a number of complexities and ambiguities that arise from this definition. Next, it turns to a discussion of the history of torture, analyzing its shift from an open and accepted practice to one that became hidden and stigmatized. The article then summarizes recent scholarship on institutional and legal influences on the practice of torture, pointing to limits on the effectiveness of democratic and judicial institutions in restricting torture. It concludes with reflections on the social forces that enable torture to continue. Although people abhor the general idea of torture, they are willing to believe official denials that authorities actually engage in torture, especially when this is hidden in prisons or black sites overseas. Moral disengagement and victim blaming make it easier to condone violence, while social amnesia contributes to a lack of accountability that suggests that abuse is acceptable.

The Definition of Torture

The UN CAT (Article 1) defines torture as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions.

According to international law, torture is the intentional infliction of intense suffering aimed at forcing someone to reveal information, punishing unwanted behavior or inspiring fear in a broader population. While this legal definition focuses on the involvement of states and their agents rather than cruelty committed by private citizens, scholars have noted that illegal organizations, such as the mafia or guerrilla armies, are also capable of torture (Davis, 2005 , p. 163).

Since freedom from torture is defined as a universal human right which states may not violate under any circumstances, states go to great lengths to insist that their conduct does not qualify as torture. As legal scholar John Parry ( 2005 , p. 520) comments, “governments will interpret the legal definition of torture to permit specific forms of coercion because they are ‘not torture,’ a move which allows formal adherence to an absolute ban on a shrinking category of conduct.” Governments have carefully parsed the language with which they describe interrogation techniques, using euphemisms and narrow legal interpretations to differentiate between their methods and torture. Governments acknowledge employing “enhanced interrogation techniques” but insist that these do not constitute torture. Like many legal formulas, the definition of torture is sufficiently vague as to permit governments to draw semantic distinctions; governments can thus deny that the harsh interrogation methods that they employ do not meet the high threshold that legally defines torture. To qualify as torture, interrogation methods must not only cause pain but “severe” pain; they must not only involve degrading and inhuman treatment, but an “aggravated” form of such treatment. The prohibition against the intentional infliction of severe physical or mental suffering therefore opens up a subjective judgment as to whether particular methods cause sufficiently severe pain as to be considered torture. As Tobias Kelly ( 2012 , p. 170) writes, “for an act to be considered torture . . . the intensity of pain and suffering is of central importance. Yet the law provides no precise point at which pain tips over into severe pain and an act becomes torture.” As a result, even though the prohibition against torture is absolute and definitive in principle, it is quite difficult in actual practice to recognize and document when torture has taken place (Kelly, 2012 , p. 169). This is especially true given the legal reservations that countries like the United States have adopted when ratifying the UN CAT, effectively excluding practices like sensory disorientation and self-inflicted pain and requiring specific intentionality that is “situated subjectively in the mind of the torturer, not objectively in the nature of his actions” (McCoy, 2011 , p.34). Though the use of excessive force would seem to be banned under international law and the US Constitution, strict textual analysis suggests that exceptions are permitted if the use of force is deemed to be “reasonable,” is applied as part of a “good faith effort to restore or maintain discipline,” or is justified by “compelling government interest” (Parry, 2005 , pp. 527–528).

Public authorities have a vested interest in insisting that instances of painful abuse should not be labeled as torture, given the political and legal consequences this carries. Following the attacks of September 11, 2001 , legal memoranda prepared by the Office of Legal Counsel within the Department of Justice authorized the use of harsh interrogation practices against detainees in Afghanistan, Iraq, and elsewhere, maintaining that these did not technically constitute torture. According to an August 2002 memo, abuse does not rise to the level of torture unless it inflicts pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” For purely mental pain or suffering to constitute torture, it had to result from “extreme acts” and “result in significant psychological harm of significant duration, e.g., lasting for months or even years.” The memo went on to examine a number of techniques such as sensory deprivation that “may amount to cruel, inhuman or degrading treatment,” but insisted that these “do not produce the pain or suffering of the necessary intensity to meet the definition of torture” (“Standards of Conduct for Interrogation under 18 USC §§2340–2340A,” August 1, 2001 ; reprinted in Greenberg and Dratel, 2005 , pp. 172–217). Public opinion in the United States suggests that most Americans generally agreed with such distinctions; for example, after the shocking pictures of prisoner abuse at Abu Ghraib prison in Iraq were shown in April 2004 , large majorities opposed the kinds of techniques used in Iraq but only a third agreed that what US soldiers did to prisoners there amounted to torture (Morin & Deane, 2004 ).

Such distinctions allow officials to distance themselves from any association with torture. In the popular imagination, torture calls to mind images of dungeons furnished with medieval instruments designed to maim and mutilate. As such, torture tends to be associated with barbaric methods of inflicting physical pain that are readily condemned by the civilized world. Yet modern torture, as Darius Rejali ( 2007 , pp. 1–5) chronicles, often takes the form of “clean” torture techniques that inflict pain without leaving visible marks. Techniques such as electric shock, choking with water, near asphyxiation, and certain types of beatings are specifically designed not to “bruise the merchandise,” which makes them easier to deny and allows states to avoid bad publicity (Rejali, 2007 , pp. 1–5). Interrogation techniques euphemistically referred to as “sleep management” (20-hour interrogations for every 24-hour cycle), “environmental manipulation” (exposure to extreme heat or cold), “stress and duress” (forcing a prisoner to stand or sit in uncomfortable positions for long periods of time), and “ego down” (degrading treatment) are often downplayed as “torture lite,” suggesting that they are not as harmful or severe as “real” torture (Bowden, 2003 , p. 53; Jaffer & Singh, 2007 , pp. 8–19; Wolfendale, 2009 , p. 54). The use of “acoustical bombardment”—playing extremely loud, dissonant music or white noise over long periods of time—has been used as a means of sensory deprivation, preventing prisoners from being able to think straight and compounding their disorientation through sleep deprivation. Although the use of music in interrogations may at first seemed innocuous, it has been found to have debilitating effects on prisoners (Cusick, 2013 , pp. 275–291). Moreover, the use of songs—like the theme song from Sesame Street or Barney the Purple Dinosaur—seems to “undercut the seriousness of the effects of the physical and psychological abuse of which it is a part. We’re able to laugh off the form of abuse on account of the associations of its content. And once we laugh at it, we effectively, although almost surreptitiously, break through the absolute ban on torture” (Cusick & Joseph, 2011 , pp. 17–18).

The various techniques used as part of enhanced interrogations are not activities that one would intuitively think of as being torturous and may even be seen as normal. For example, Rudy Giuliani, the former mayor of New York City, compared sleep deprivation to the “fatigue of campaigning” that he experienced (Bellaby, 2015 , p. 185). When asked to approve specific interrogation techniques for prisoners at Guantánamo, Defense Secretary Rumsfeld authorized forcing prisoners to stand for long periods of time and asked why this was limited to eight hours per day, suggesting that he stood that long if not longer himself (Haynes, 2002 ). Such responses suggest that one knows what it feels like to undergo one of the torture lite techniques and that detainees are weak for not being able to withstand them (Cusick & Joseph, 2011 , p. 18). However, as Elaine Scarry ( 1985 , pp. 47–48) points out, forcing people to stand completely immobile for long periods of time “can produce as violent muscle and spine pain as can injury from elaborate equipment and apparatus, though any of us outside this situation, used to adjusting our body positions every few moments before even mild discomfort is felt, may not immediately recognize this.” Ross Bellaby ( 2015 , pp. 185–186) notes that interrogation techniques are used in combination and over long periods “with no option of recovery, revival or understanding of when the ordeal will end. . . . Over time the building up or continuation of such activities can have profound effects on an individual’s mental, physical and emotional state” and in combination amount to full torture.

Nonetheless, by employing “harsh interrogation” rather than torture, interrogators can more readily see themselves as “professionals motivated by the need to gain intelligence essential for saving lives” rather than as brutal or sadistic torturers (Wolfendale, 2009 , p. 49). Moreover, the use of “lite” techniques is easier to justify because interrogators are not forced to inflict physical violence directly. While they may force detainees into stress positions or subject them to sensory deprivation, the agony that the detainees experience stems from their prolonged exposure to certain conditions rather than an immediate response to the infliction of pain (Wolfendale, 2009 , p. 55). Thus, it is easier to convince interrogators that their actions are benign and that the detainees are responsible for their own pain (Wolfendale, 2009 , pp. 56–57).

Thus, according to certain perspectives, interrogation techniques and detention procedures that aim at “softening up” prisoners through sensory deprivation, sexual humiliation, and exploitation of phobias, though unpleasant, do not constitute torture. Similarly, psychological manipulations designed to break a person’s resistance by creating fear, terror, or helplessness may not be counted as torture because they are presumed not to cause prolonged mental harm, such as the development of post-traumatic stress disorder (Başoğlu, Livanou, & Crnobarić, 2007 , pp. 277–278). Such a distinction between physical torture and extreme mental suffering is reflected in the different legal status of torture, on the one hand, and cruel, inhuman, or degrading treatment, on the other. The British government, recognizing the significance of this distinction, appealed a ruling by the European Court and scored a public relations victory by reducing the court’s finding to the judgment that Britain was “only” guilty of cruel and unusual treatment of Irish political prisoners—not actual torture (Millett, 1994 , p. 102). The CAT also creates a distinction, requiring states parties to criminalize official torture, but simply exhorting them to work to prevent cruel, inhuman, or degrading treatment.

Yet, a 2007 study of survivors of torture found that psychological manipulation, humiliating treatment, exposure to adverse environmental conditions, and forced stress positions were no different from physical torture in terms of the level of traumatic stress and the long-term psychological after-effects that they cause. Based on their findings, the authors conclude that it is misleading to distinguish between torture and other cruel, inhuman, or degrading treatment since both can cause severe mental suffering (Başoğlu et al., 2007 , pp. 283–284). Other medical experts concur that psychological manipulations and forced stress positions are not “substantially different from physical torture in terms of the severity of mental suffering” and can have severe, long lasting effects (McCoy, 2011 , p. 32; Wolfendale, 2009 , pp. 50–51). Similarly, in a study of the effects of extreme stressors on the brain, neuropsychologist Shane O’Mara ( 2015 , p. 4) finds that coercive practices that involve extreme and prolonged stress impair the normal functioning of the brain and result in neuropsychiatric disorders, disrupting if not permanently damaging bodily function and thereby violating even the standards laid down by administration lawyers. Along the same lines, David Luban ( 2009 , p. 222) argues that “there is something deeply wrong, not to mention perverse, about the entire enterprise of trying to draw fine lines between torture and lesser abuses. An essential continuity exists between them, because all have the degradation of their victim as their core.” For Luban, the key characteristic of torture lies in the abject humiliation of the victim, whose sense of complete powerlessness creates such intense fear that the victim is terrorized and “broken.” For interrogators like Tony Lagouranis and Eric Fair, interrogation practices such as stress positions and sleep deprivation, despite their designation as legal rules of engagement, actually did constitute torture; the practices stripped the detainees of their humanity, with effects that were intense, severe and extraordinarily painful (Fair, 2016 ; Lagouranis, 2008 , pp. 335–336).

Elaine Scarry shares Luban’s view that torture renders the victim completely powerless, but she focuses on the way that the infliction of excruciating pain does this. According to Scarry ( 1985 , pp. 27–28), torture reduces people to prisoners of their bodies, demonstrating and magnifying the power of the agent (and, by extension, the regime) employing torture. The “annihilating power of pain” narrows victims’ consciousness, reducing their focus to immediate bodily sensations. Their bodies become agents of their own agony, as the “grotesque overload” of physical pain disintegrates their sense of self and eliminates their ability to express and project themselves through language (Scarry, 1985 , pp. 47–49). The “world-destroying” effect of torture, in turn, compels prisoners to confess, “to assent to words that through the thick agony of the body can be only dimly heard” (Scarry, 1985 , pp. 33, 35). The confession, as Scarry explains, is what provides a justification for brutal treatment, redirecting moral responsibility from the torturer to the prisoner. Even though the torturer is in complete control, the interrogation process shifts blame on to the victim, pretending that the prisoner has caused this situation by withholding information. Yet even a confession does not absolve the prisoner: “despite the fact that in reality he has been deprived of all control over, and therefore all responsibility for, his world, his words, and his body, he is to understand his confession as it will be understood by others, as an act of self-betrayal” (Scarry, 1985 , p. 47).

Along similar lines, Jean Améry, a victim of torture during World War II, writes that torture destroys people’s sense of self by breaking down the boundaries of the body. When the victim’s body is attacked—and furthermore, when the victim has neither the ability to defend himself nor the expectation of help from another person—then he becomes nothing but a body in pain: “only in torture does the transformation of the person into flesh become complete. Frail in the face of violence, yelling out in pain, awaiting no help, capable of no resistance, the tortured person is only a body, and nothing else beside that” (Améry, 1980 , p. 28). The victim’s body becomes the instrument of the torturer, who exercises absolute domination over the prisoner’s flesh and spirit, rendering the victim helpless and hopeless (Améry, 1980 , pp. 21–40).

Recent philosophical essays argue that it is the asymmetrical relationship between victims and torturers that makes torture distinctive. Whereas victims of torture are completely vulnerable and exposed, their torturers are in perfect control. Victims are utterly at the mercy of their tormentors; the prisoner “cannot effectively evade, retaliate or shield himself against these assaults. Unlike other kinds of attack, here the victim must simply take it: there is no reply or counter open to him” (Sussman, 2005 , p. 31). Moreover, the victim cannot stop his or her physical suffering by admitting defeat; although in theory torture will stop once the subject confesses or provides certain information, “a torturer seldom if ever knows how much useful information the tortured has or how much the tortured must confess in order to have confessed ‘everything’” (Davis, 2005 , p. 164). Torture takes full advantage of victims’ helplessness, turning them into active accomplices in their own debasement. Because of the insistent, primal demand for relief from intense pain, victims cannot help but search for some way of appeasing or mollifying their tormentors; the “victim experiences within himself a dialectic where some part of him serves as the eager agent of his tormentor . . . the victim finds in his pain, and his own immediate responses to that pain, a surrogate for the torturer. The victim’s own voice, the voice of his body, has come in part to speak the torturer’s mind” (Sussman, 2005 , p. 24). In addition to exploiting the victim’s pain, torturers defile, degrade, and overwhelm their victims with shame, similar to victims of rape; not surprisingly, sexual torture is often used to emphasize the power of the tormentor and the vulnerability of the victim (Millett, 1994 , pp. 34–35).

The essence of torture is the destruction of the victim’s sense of agency. The deliberate infliction of severe physical pain or mental suffering is not enough; this must be done with the purpose of bringing individuals to such a point of weakness that they betray themselves. The victim must be broken, forced to offer information against his or her will (Bellaby, 2015 , p. 187). When a person voluntarily submits to painful procedures (such as self-flagellation or painful medical procedures), this does not qualify as torture. Moreover, torture differs from coercion insofar as torture seeks to terrorize victims into submission by overwhelming their capacity to exercise rational control over their decisions. Finally, torture differs from corporal punishment insofar as the latter prescribes a specific, predetermined penalty for a particular transgression and does not seek to break the guilty party’s will (Miller, 2017 ; for a contrasting view, see Schabas, 1996 , p. 4). As Manfred Nowak ( 2006 , p. 832), the UN Special Rapporteur on Torture, explains in his study of US and international standards of torture, what distinguishes torture is the total subordination of the victim to the will and power of the torturer, for example through prolonged incommunicado detention in a secret place, which permits the perpetrator to intentionally inflict pain or suffering so as to extract a confession, obtain information, or punish or intimidate the victim.

History of Torture

Although torture has come to be widely rejected, this was not always the case. Historically, torture was not only common in times of war and social upheaval, but it was also openly practiced in many societies as an integral part of the judicial system. No euphemisms for torture were needed in medieval Europe since there was no need to deny the process and torture enjoyed general cultural consent (Silverman, 2001 , p. 21). Throughout much of history and much of the world, torture was seen as an effective technique for obtaining “true” information as well as an appropriate punishment for the immoral and a useful deterrent against future misconduct. Ancient Greeks accepted torture for the interrogation of slaves based on the assumption that slaves could not be trusted to reveal the truth voluntarily. The Romans adopted this practice and extended it to citizens, including Christians who were “put to the question” to force them to renounce their faith. With the rise of Christianity, torture fell into relative disuse until the 11th century , when European judicial systems resurrected the practice of judicial torture and the Catholic Church reversed its previous opposition to torture and sanctioned the use of torture against heretics (Peters, 1985 , pp. 13–14). In China, torture was a legally sanctioned means of extracting information and confessions from the Han dynasty ( 206 bce – 220 ce ) until just before the end of the imperial system in 1905 . Chinese officials were convinced that “the measured use of torture could result in more substantive justice—in the sense that the guilty were more likely to be convicted and the innocent allowed to go free” (Park, 2008 , p. 37).

Analyzing the accepted use of torture in medieval Europe, Lisa Silverman ( 2001 , p. 61) explains that Europeans generally believed that the truth could be elicited from the subconscious by applying physical pain: “It was widely believed that the body had many ways to betray the criminal involuntarily, speaking the truth in signs for all to see while the will stopped the tongue. Pallor, for example, was well known to indicate guilty knowledge.” By inflicting physical pain, legalized torture was therefore seen to bypass the human will and force truth from the guilty, while God would reward those proven innocent. Contrary to the modern assumption that only testimony that is given voluntarily is true, early modern people assumed that “the accused spoke the truth not freely but under compulsion, and it was precisely this compulsion … which made evidence acquired under torture so valuable” (Silverman, 2001 , p. 66).

The legal acceptability of torture therefore rested on the belief that it was an unpleasant but necessary means for discovering the truth and thus achieving justice. Criminals would be made to confess their guilt and pay for their crimes; the innocent would be vindicated. In both cases, the pain and suffering of those tortured would help achieve a higher goal, whether preserving civilization, fulfilling a sacred religious mission, or protecting the community. Torture was also used as an accepted part of ordinary criminal procedure in Europe from the thirteenth to the late eighteenth centuries , when judges were required to establish certain guilt in order to convict someone of a serious crime; certainty, in turn, was established through the testimony of two eyewitnesses or the accused person’s own confession. Because the two-eyewitness standard was so difficult to achieve, torture became an accepted means of extracting confessions (Langbein, 2004 , pp. 94–97).

In each case, the practice of torture was subject to strict rules, including the specific instruments to be used, the way in which they were to be applied, and the types of people who could be subjected to torture. In each case, initial restrictions were eventually eased. In ancient Greece and Rome, the rule that only slaves could be tortured was eventually expanded to include other groups; similarly, initial exemptions for women, children, and privileged classes were eventually dropped in medieval Europe. As John Conroy ( 2000 , pp. 27–28) explains, “the class of people whom society accepts as torturable has a tendency to expand.”

Changes in European legal systems led to a general ban on torture in continental Europe over the course of the 18th century . With the advent of less severe punishments for crimes, standards of proof could be relaxed. Defendants could be sentenced to jail, the workhouse, or exile rather than death; whereas the high stakes involved in sentencing a prisoner to death required definitive proof, relatively lighter sentences could be justified on the basis of circumstantial evidence. Torture-induced confessions were no longer legally justified (Langbein, 2004 , pp. 97–99). The abolition of a legalized system of judicial torture also reflected a shift in thinking about torture. Previously, torture was justified on religious grounds since it was presumed to benefit the sufferer by forcing him to admit the truth, even against his will, and thus bringing him closer to God. The infliction of pain was seen as a positive technique for saving the souls of fallen Christians, allowing sufferers to atone for their sins and win eternal salvation; hence, torture in the Inquisition was justified as Rettungsfolter or salvation-oriented torture (Brunkhorst, 2009 , p. 75; Glucklich, 2001 ).

Over the course of the 18th century , however, Enlightenment thinkers challenged this sacramental view of pain, contending that pain had no redeeming value and no connection to metaphysical truths; these intellectuals replaced the sacramental vision of pain with a medical approach to pain that emphasized the need to relieve suffering. Rather than embracing physical pain as a positive technique for overcoming selfishness, they condemned it as a negative practice that destroyed the self. They denied the value of testimony elicited through torture and charged that torture was a “tool of despotism” and “a weapon in the arsenal of political oppression” (Silverman, 2001 , p. 171). In his 1764 “Essay on Crimes and Punishments,” Italian prison reformer Cesare Beccaria wrote that governments have no right to authorize the punishment of a citizen so long as there remains any doubt of his guilt; according to Beccaria, torture was “a sure way to acquit robust scoundrels and to condemn weak but innocent people” (quoted in Foot, 2006 , p. 135). The changing cultural landscape meant that, in Europe at least, torture was transformed from a generally accepted practice to a generally rejected practice by the end of the 18th century . In fact, judicial torture had already become less common before this time, since judges had previously become skeptical that torture necessarily produced truthful testimony (Langbein, 2004 , p. 99; Silverman, 2001 , pp. 66–67).

Michel Foucault analyzes a similar shift in attitudes toward the use of torture as a method of punishment. Prior to the 18th century , torture was not only used to extract confessions but was also used as a form of extreme punishment intended to demonstrate and strengthen the sovereign’s power: “Its aim is not so much to re-establish a balance as to bring into play, at its extreme point, the dissymmetry between the subject who has dared to violate the law and the all-powerful sovereign who displays his strength” (Foucault, 1975 , pp. 48–49). As such, torture was used to terrorize the rest of the population by demonstrating the fearsome consequences of incurring the sovereign’s wrath. Yet the sovereign’s public use of torture as punishment, for example in public executions, did not necessarily deter others from misbehaving; it sometimes triggered sympathy for the convict and prompted riots in support of the prisoner. Public torture therefore proved counterproductive to the goals of the state, undermining rather than reinforcing the sovereign’s power. As such, it gave way to new disciplinary techniques that rejected brutal violence as an ineffective method of controlling and manipulating behavior. Although there was still a fear of violence and brutality, prisoners were found to be much more effectively disciplined by isolating them and subjecting them to constant surveillance.

Changes in legal theory meant that after the 18th century , judicial torture was no longer condoned in Western Europe. Coerced confessions were considered unreliable and were inadmissible as evidence. Torture came to be seen as the hallmark of a premodern, uncivilized culture, and modern, liberal regimes were assumed to have abandoned such a barbaric practice. According to the author of a 1907 entry on torture in the Encyclopaedia Britannica , “the whole subject is now only one of historical interest as far as Europe is concerned” (quoted in Twining & Twining, 1973 , p. 305). When Rejali (quoted in Parry, 2005 , pp. 517–518) wrote that the use of torture in Iran was not an anachronism but part of a rational, bureaucratic structure typical of modern states, his association of torture and modernity prompted one critical reviewer to ask: “if the growth of torture in 20th-century Iran and its changing forms are caused by efforts to modernize, why do we not torture in the modern United States or Western Europe?”

In fact, Rejali documents the continued use of torture by modern democracies in his 2007 book, Torture and Democracy , and argues that the scrutiny of civil society actors and human rights advocates has not ended torture but has incentivized interrogators to employ non-scarring techniques instead: “When we watch interrogators, interrogators get sneaky” (Rejali, 2007 , p. 9). In his comparative and historical analysis of torture, Christopher Einolf ( 2007 ) provides statistical evidence that there was a resurgence of torture in the 20th century . Torture increased with the rise of fascist and communist regimes in Germany, the Soviet Union, and their allies. These regimes employed torture as a mechanism for social control, using it to sow fear in their populations and neutralize dissent. Changes in the intensity and nature of military conduct in the first half of the century also led to an increase of torture of prisoners of war and occupied populations: “When total war tactics were combined with ideological and nationalist disrespect for conventional limitations on war, massacre, violence against civilians, and torture of enemy civilians and prisoners of war occurred at unprecedented levels” (Einolf, 2007 , p. 114).

Yet torture was also a common social practice used against domestic populations, especially members of marginalized groups (Parry, 2005 , p. 521). In the United States, a 1931 report by the National Commission on Law Observance and Enforcement documented the widespread use of stress positions, battery, psychological torture and the “water cure” in order to obtain information about a crime, highlighting the systematic use of the “third degree” by police and prison officials (Coyne & Hall, 2018 , pp. 146–147). Some of these techniques were apparently first tested in the Philippines where a wide range of torture techniques became standard operating procedure, subject to few constraints and no legal accountability (Coyne & Hall, 2018 , pp. 142–145).

Despite international efforts to promote human rights at the conclusion of World War II, torture continued to happen “off stage” in colonial and foreign locations and against members of marginalized groups whose guilt was presumed and credibility was questioned (Parry, 2005 , pp. 521–522). While colonial governments practiced torture prior to the 20th century , the rise of anti-colonial movements in the second half of the 20th century prompted colonial authorities to tighten their control and resort to increasingly brutal methods, including torture. Counter-insurgency campaigns against guerrilla forces also led to an increase in torture, as insurgents and their supporters were more likely to be tortured for information than prisoners of war in previous conventional wars, who were believed to possess relatively little information of value to the other side (Einolf, 2007 , p. 114). The 20th century also saw the rise of military governments in Latin America and communist governments in Asia that used systematic repression and torture to crack down on real and suspected opponents. These governments used torture and state terror to subdue their populations, exaggerating the extent and depth of security threats due to rigid ideological frameworks that convinced leaders that repression of the general population was necessary (Pion-Berlin & Lopez, 1991 , p. 68).

Since torture is forbidden under international law, it is commonly associated with nondemocratic regimes that fail to recognize limits on their power and wantonly subject individuals to brutal, inhumane treatment. However, with the rise of international campaigns against torture and the conditioning of foreign aid on adherence to human rights norms, nondemocratic states came to appreciate the value of appearing to conform to international norms prohibiting torture. Even nondemocratic states that regularly employ torture have ratified the UN CAT, calculating that doing so will enhance their reputations without actually preventing them from continuing to use torture (Hathaway, 2004 , pp. 202–208). In addition, both nondemocratic and democratic states have turned to “clean” torture techniques in order to avoid bad publicity about their human rights practices (Rejali, 2007 , pp. 23–26). These techniques, which leave no visible marks and are therefore easier to downplay and deny, were first developed in democratic countries, where governments continued to believe that coercive interrogation techniques were a useful means of generating valuable intelligence but also realized that they were being watched and judged by others in how well they respected human rights. Thus, in order to avoid bad publicity and preserve a veneer of legitimacy, they turned to what Rejali ( 2007 , pp. 1–10, 2011 , p. 30) refers to as stealth torture: “whenever there’s a free press, church groups, and politicians to watch the police, the interrogators literally pull their punches” and use clean torture techniques instead.

Thus, democratic and undemocratic countries alike have developed ways of evading public scrutiny of unsavory practices that they officially renounced but privately employed. Historian Alfred McCoy ( 2011 , p. 31) examines the program of psychological torture developed and propagated by the CIA during the Cold War, emphasizing that the techniques of sensory disorientation and self-inflicted pain proved advantageous insofar as they did not leave “clear signs of abuse, greatly complicating any investigation, prosecution, or attempt at prohibition.” The CIA conducted research on mind control through “truth drugs” like LSD and experimented with forms of psychological torture through extreme sensory deprivation in hopes of gaining an advantage vis-à-vis their communist rivals (Coyne & Hall, 2018 , pp. 155–160). In Vietnam, where constraints were absent or lax, torture was used as part of Project Phoenix, a program designed to find, capture, interrogate and kill Vietnamese sympathetic to the Viet Cong. Some of the torture techniques developed in Vietnam were later brought back to the United States and used to coerce confessions from criminal suspects, as in the case of Vietnam veteran and Chicago police officer Jon Burge, reported to have overseen the torture of hundreds of African American suspects (Coyne & Hall, 2018 , pp. 162–166). Other cases of democratic countries’ use of torture against people defined as insurgents, terrorists, revolutionaries, or criminals include the French use of torture in Vietnam and Algeria, British practices in Kenya and Northern Ireland, dirty war tactics employed by Spanish security forces against Basque separatists, as well as methods used by Israeli security services to interrogate Palestinians suspected of “hostile terrorist activity” (Conroy, 2000 , pp. 4–8; Millett, 1994 , pp. 74–116; Parry, 2005 , p. 518; Supreme Court of Israel, 1999 ). Furthermore, officials from intelligence agencies of democratic countries were also involved in training their counterparts in developing countries on interrogation methods, including torture; the US Army School of the Americas (SOA) trained Latin American militaries to use practices such as torture, extortion, kidnapping and execution (Blakeley, 2006 ; McCoy, 2011 , p. 33; Quigley, 2011 , pp. 54–57).

These practices were deliberately hidden from the public since this allowed democratic citizens to imagine that the methods employed by their government were both efficient and moral; as Andrew Linklater (quoted in Steele, 2010 , p. 153) explains, “concealment protects moral sensibilities.” Democratic elites also took advantage of the public’s greater willingness to condone the use of torture against racial minorities, immigrants and other marginalized citizens, who are often seen as “deserving” rough treatment since they are members of groups that are portrayed as suspicious or even dangerous (Kelly, 2009 ; Wolfendale, 2009 , p. 58). As Brent Steele ( 2010 , p. 153) explains, if we do not identify—or identify with—the individuals who are subjected to torture, then we can imagine that they are as bad as possible and that they deserve the treatment they receive. Einolf ( 2007 , p. 102) agrees, citing evidence that torture is used “more often against people who are not full members of a society, such as slaves, foreigners, prisoners of war, and members of racial, ethnic, and religious outsider groups” or when the state is perceived to be under severe threat. As a result, despite domestic and international condemnation, torture techniques continue to be used not only in cases of national emergency but also as a routine part of many judicial systems (Tse, 2011 ).

Political and Institutional Influences on the Practice of Torture

All types of governments respond to violent challenges with repression. Studies have found that governments are significantly more likely to resort to torture when they face threats to their continued rule, especially when they are engaged in civil and international wars, face a violent dissident challenge, or are attacked by a transnational terrorist group (see, for example, Conrad et al., 2017 ; Davenport et al., 2007 ; Einolf, 2007 ; Wantchekon & Healy, 1999 ). Erwin Staub ( 2003 ) studied social indicators of genocide and torture, analyzing Turkey during years of Armenian genocide ( 1914–1918 ), Nazi Germany ( 1933–1945 ), Pol Pot’s Cambodia ( 1976–1979 ), Argentina’s “Dirty War” ( 1976–1983 ) and identified the scapegoating of a subgroup as the social condition most conducive to rise of torture. Criminologist Ronald Crelinsten ( 2005 , pp. 76–77) adds that torture is more likely in times of national emergency when there is an especially strong sense of threat to security and when prevailing ideology touts a “sacred mission” that provides a justification for violating standard social norms; he finds that torture is also more common when large numbers of suspects need to be processed. James Piazza and James Walsh ( 2009 , pp. 126–145) come to a more nuanced conclusion in their analysis of the impact of terrorism on government protections of human rights, finding that countries experiencing a large number of terrorist attacks were more likely to engage in disappearances and extrajudicial killings but not in torture, political imprisonment or restrictions on free speech and assembly. They do admit, however, that states may respond to terrorist attacks by engaging in more “clean” torture techniques that are by definition difficult for human rights monitoring groups to detect, much like disappearances and extrajudicial killings (Piazza & Walsh, 2009 , p. 138).

According to Emilia Powell and Jeffrey Staton ( 2009 , pp. 149–150), 83% of all states that ratified the CAT engaged in at least minimal treaty violations, while 42% of ratifiers—including 30% of democracies that ratified the CAT—systematically violated the convention. Democracies are therefore not as exceptional as they often like to think of themselves. On the one hand, liberal democratic institutions have been found to limit state coercion and repression. Democracies have a better record when it comes to respecting physical integrity rights (including freedom from torture as well as lack of extrajudicial killings, disappearances, and political imprisonment), especially where they have effective constitutional guarantees of the right to fair and public trials (Keith, Tate, & Poe, 2009 , p. 652; Simmons, 2009 , pp. 273–274). In democracies, a free media can act as a watchdog and expose human rights violations (Whitten-Woodring, 2009 ), contested elections can incentivize public officials to protect physical integrity rights (Cingranelli & Filippov, 2010 ) and effective judicial institutions can punish instances of state torture (Powell & Staton, 2009 ). Nonetheless, democratic governments have not abandoned the use of torture and many consider it useful in case of external threats such as transnational terrorism. In such instances, they turn to stealth torture and clean torture techniques in order to maintain plausible deniability and reduce the risk of exposure (Rejali, 2007 ). This allows democratic officials to claim that they remain within the bounds of legally acceptable levels of violence, as in former CIA director Michael Hayden’s central metaphor in his 2016 memoir Playing to the Edge , which he describes as playing so close to the line that you get chalk dust on your cleats. In fact, as Jinee Lokaneeta ( 2011 , pp. 34–35) argues, jurisprudence in liberal democracies uses such ambiguity to unequivocally reject torture while simultaneously permitting other forms of excess that exist at the border of legality and illegality. Thus, while constitutional provisions and human rights treaty commitments are not mere “parchment barriers” to human rights abuses including torture (Keith et al., 2009 ), they do not prevent states from violating such commitments in the face of terrorism or violent dissent.

Elections and liberal democratic institutions do, however, tend to reduce the duration of human rights abuses once violent challenges end. Courtenay Conrad and Will Moore ( 2010 ) find that elections and liberal democratic institutions can influence governments to stop using torture once the threat of violent opposition is gone; states with popular suffrage and a free press are generally more likely to terminate their use of torture because allegations of torture are more likely to become public and the executive is more likely to be held responsible and removed from office. Under such circumstances, executives have an incentive to take actions to convince interrogators and jailers that they will be caught and punished if they resort to torture. Democratic systems with a greater number of checks on executive authority (that is, a large number of veto players) are less likely to change torture practices, however, since the system is weighted toward maintaining the status quo. For example, though Barack Obama promised to close the detention camps at Guantanamo Bay, he was blocked from doing so by Congress, showing that institutionalized separation of powers makes it difficult to change human rights policy.

Thus, the use of torture may continue even when the threat of violent dissent is removed: “States whose agents engage in torture in a given year have a 93% chance of continuing to torture in the following year” (Conrad & Moore, 2010 , p. 459). The use of torture is often embedded in local culture and can be difficult to dislodge, given that executives cannot monitor and control all of the agents assigned to interrogate and supervise prisoners. In interviews with local police in India, Rachel Wahl ( 2014 , pp. 820–821) found that a deeply entrenched moral beliefs that defended the use of torture against hardened criminals and terrorists who were seen as “less human.” These enforcement officers rejected the premise that their job was to uphold the law and protect human rights; instead, they justified the use of torture as necessary to fight evil and achieve justice (Wahl, 2014 , pp. 821–822). In the face of genuine moral beliefs that conflict with human rights norms, upholding the personal integrity rights of criminals and marginalized individuals can be difficult even under normal circumstances. However, governments and enforcement officers who refrain from using torture are likely to maintain good practices “until a national security threat justifies the rougher handling of detainees” (Simmons, 2009 , pp. 305–306).

Democratic institutions may constrain governments from engaging in human rights abuses but they may also respond to popular pressure to use harsh tactics against foreigners and marginalized groups, rewarding leaders who vow to protect national security. Democratic majorities expect their leaders to protect them and elected officials who approve or condone the use of torture in the name of order and national security are often re-elected: “blocks of voters who explicitly support aggressive coercive behavior against unwanted others are able to elect executives who promise to take off the gloves on the grounds that they are implementing the will of the people” (Conrad, Hill, & Moore, 2018 , p. 4). Using data from Amnesty International on specific allegations of torture and ill treatment, Courtenay Conrad, Daniel Hill and Will Moore ( 2018 , p. 13) find that contested elections do not lead to greater protection of individual human rights; popularly “elected leaders are expected to protect the majority, and elections may incentivize them to permit/order state agents do so by committing human rights violations against people perceived to be threatening.” Even where there is widespread support for the general prohibition of torture, voters are unlikely to make protection of human rights a key electoral issue, especially for the rights of people of different racial, ethnic and cultural backgrounds. Survey research suggests, for example, that Americans are more accepting of government torture when a detainee has an Arabic name and when the alleged crime is terrorism (Conrad, Croco, Gomez, and Moore, 2018 ; Piazza, 2015 ). Contrarily, powerful constitutional courts are created to protect the rights of political minorities by monitoring and punishing violations of constitutional and human rights. Where courts are powerful, victims may file cases against human rights violators and those found guilty may be held accountable. Even so, effective courts cannot entirely prevent repressive practices, as officials may maintain plausible deniability by employing clean torture techniques that are easier to hide: “Courts may decrease state repression writ large, but they also appear to encourage executives and their agents to be more clever in hiding human rights violations that can be narrowly targeted by turning to clean torture when they do occur” (Conrad et al., 2018 , pp. 13–14). Similarly, despite expectations that constitutional prohibitions on torture should counter majoritarian support for repression of minorities, Adam Chilton and Mila Versteeg ( 2015 ) find that countries with torture bans actually engaged in more torture than countries without such bans and that torture levels actually worsened in the ten years after bans were adopted.

Just as liberal democracies generally have better human rights records but nonetheless practice torture in response to violent threats such as transnational terrorism, their compliance with international human rights treaties varies. Here, too, independent domestic courts may not be enough to deter governments from violating their commitment to refrain from using torture, and majoritarian pressures may actually reward some governments in the form of increased popular support for governments that openly violate international law (Lupu & Wallace, 2019 ). Yonatan Lupu ( 2013 ) argues that even powerful courts in liberal democracies may lack sufficient information to secure prosecutions for alleged cases of torture where evidence is difficult to obtain and standards of proof are high; as a result, ratification of the ICCPR has improved government respect for the freedoms of speech, association, assembly, and religion, but has not reduced the extent to which governments use torture, extrajudicial killings, political imprisonment, and disappearances.

Nondemocratic governments, however, are more likely to flout the terms of international human rights treaties, even when they have ratified such treaties. Such governments may cynically ratify treaties as a form of “social camouflage” to avoid international criticism even though they have little intention of actually improving their human rights practices (Simmons, 2009 , p. 112). Nondemocratic governments are actually more likely to practice torture if they have signed the CAT than if they have not (Hathaway, 2004 ). James Vreeland ( 2008 , pp. 69–70) explains this initially counterintuitive finding by analyzing the different circumstances facing “open” and “closed” dictatorships. He found that dictatorships with the trappings of competitive party politics are both more likely to sign the CAT and also demonstrate higher rates of torture. He explains that “closed” dictatorships in which power is concentrated in a single political party, junta, or leader actually face less opposition since defection is invariably punished. Such regimes face little pressure to ratify human rights treaties; moreover, since they rely on fear and intimidation to rule, “even a symbolic gesture against torture could introduce ambiguity over [their] limitations” (Vreeland, 2008 , p. 78). Dictatorships that allow some competition, however, face much greater prospects of defection and consequently have higher average rates of torture. At the same time, the greater level of uncertainty that characterizes multiparty dictatorships means that domestic political actors are in a better position to press their government to ratify human rights conventions such as the CAT. Vreeland ( 2008 , p. 94) clarifies that becoming a state party to the CAT does not itself cause an increase in torture and “may even serve to help reduce torture as governments adopt CAT provisions into domestic law”—which is why the domestic opposition in multiparty authoritarian regimes push for accession in the first place. Jay Goodliffe and Darren Hawkins ( 2006 , pp. 359–360) also argue that ratification entails a significant commitment insofar as it requires ratifying states to verify policy implementation, and establishes international monitoring and delegates prosecuting authority to other states through universal jurisdiction.

Emilie Hafner-Burton ( 2008 , pp. 700–701) argues that “naming and shaming” by human rights NGOs, media sources, and international organizations is often followed by even more acts of torture and disappearances. This arguably results from the fact that international pressure compels repressive governments to make a variety of improvements in political rights, but doing so exacerbates leaders’ insecurity and prompts them to engage in increased terror to offset these improvements, especially when armed opposition groups or elections threaten their hold on power (Hafner-Burton, 2008 , p. 712). While Beth Simmons ( 2009 , p. 305) acknowledges that international human rights treaties like the CAT cannot force governments to comply, she insists that these treaties can and do reduce torture in polities that have at least moderate levels of public accountability:

CAT ratification resonates in those polities; individuals and groups who may have good reason to fear mistreatment of themselves, their families, their countrymen, or other humans by the government have strong incentives to mobilize to implement the international ban in domestic law.

Overall, respect for constitutional protections of personal integrity rights and for the global norm against torture depends to a large extent on the expectation of norm enforcement and accountability, which is greater but not given in democratic states. Strong domestic legal systems can place significant constraints on the behavior of government leaders and agents, but enforcement is particularly difficult in the case of torture since violations tend to be hidden and public outcry is sporadic at best.

Although disagreements remain over the precise definition of torture, its modern use, and the effectiveness of international treaties prohibiting torture, most scholars agree that “the impressive worldwide prohibition of torture must be honored rather than co-opted by legal sleight of hand” (Miller, 2005 , p. 41). Though torture continues to be practiced by modern states, including democracies, it rejects the liberal tenet of the inviolable dignity of the individual and gives agents of the state absolute power over prisoners. This has a corrupting influence and is incompatible with liberalism and limited government. Even if the intended end is to save lives, the use of torture is generally rejected as an unacceptable means, and government resort to hypocrisy, secrecy and obfuscation, insisting that their enhanced interrogation methods do not qualify as torture. The absolute prohibition against torture under domestic and international law incentivizes officials to turn to clean techniques that have the veneer of acceptability even though they can cause excruciating pain and severe mental suffering.

Continued use of such techniques is made easier by downplaying their seriousness and restricting their use to marginalized groups in remote locations. “When officials declare that they have not approved illegal or inappropriate treatment, their denials tend to be accepted because we are likely to overlook or discount the seriousness of the treatment that has been permitted or inflicted” (Parry, 2005 , p. 521). The use of clean torture means that victims have a difficult time proving that they were brutally mistreated and they “may be already defined as suspect or untrustworthy because of their race or ethnicity, or because they were detained in the first place” (Parry, 2005 , p. 521). Moreover, torture is easier to hide when victims are others—foreign enemies or racial, ethnic, religious, and other minorities who are naturally regarded with less sympathy and more suspicion. People are less likely to define an act as torture when it is perpetrated against others and are therefore less likely to be concerned about torture when it occurs overseas against terrorism suspects that are viewed as a distinct “other” or is perpetrated by a member of one’s out-group (Kearns, 2015 , p. 10; Norris, Larsen, & Stastny, 2010 ).

Distinguishing between in-groups and out-groups is also one of the steps involved in conditioning individuals to commit violence and torture. In-group solidarity is fostered through common uniforms, rules, and language. Camaraderie and peer pressure urge individuals on while authorities encourage obedience and provide rewards (Huggins, Haritos-Fatouros, & Zimbardo, 2002 ). Socialization and group cohesiveness increase anonymity and decrease self-awareness, fostering a lack of personal accountability for abusive behavior (Costanzo & Gerrity, 2009 , pp. 196–198). In his study of a German police unit during World War II, Christopher Browning ( 1998 ) argues that the “ordinary men” who served in the unit were gradually desensitized to brutality by the examples of their peers and the mockery they feared if they failed to participate. Hostility toward out-groups is encouraged by dehumanizing victims and characterizing them as a threat, making it less disturbing to use violence against them. As Janice Gibson and Mika Haritos-Fatouros ( 1986 ) analyze in their study of the brutal but effective process of desensitizing special police units in Greece to torture suspected communists, military training gradually desensitized soldiers to violence and reduced the strain normally created by repugnant acts. The moral disengagement that made violence possible involved giving the enemy derogatory names and portraying them as less than human, making it easier to kil1 them (Gibson & Haritos-Fatouros, 1986 , p. 55). Similarly, in the Stanford prison experiment, the students who were randomly assigned to be guards quickly became aggressive and abusive within the prison, insulting and bullying the prisoners:

Even without training, the student guards “knew” from television and movies that they were supposed to punish prisoners; they “knew” they were supposed to feel superior; and they “knew” they were supposed to blame their victims. Their own behavior and that of their peers gradually numbed their sensitivity to what they were doing, and they were rewarded by the power they had over their prisoners. (Gibson & Haritos-Fatouros, 1986 , p. 57)

Dehumanization also helps explain the lack of accountability even when cases of torture are uncovered. In John Conroy’s ( 2000 ) study of the “unspeakable acts” committed by British soldiers against Northern Irish men falsely accused of being Irish Republican Army terrorists, he notes that the British government took years to acknowledge that the abuse and continued to deny that the techniques constituted torture. Moreover, the government charged without evidence that the tortured detainees were nothing more than “thugs and murderers” while “the perpetrators, instigators, and defenders of the five techniques . . . escaped unscathed, their reputations untarnished” (Conroy, 2000 , p. 187).

The continued use of torture and abusive practices also relies on social amnesia, which perpetuates a culture of impunity (Rajali, 2011 , p. 27). Occasional scandals tend to quickly fade from memory and torture retreats back to the shadows, at the margins of prevailing political discourse (Parry, 2005 , p. 521). For example, the British public’s knowledge of torture and other abuses committed by British colonial authorities in Kenya has clearly faded:

It is fair to say that even now, fifty years later, the British public is not really aware of what went on . . . British ignorance about Mau Mau is of a peculiar, resilient kind. It is breached every so often, but then heals over again. . . . There was a period in the later 1950s when everyone knew, or could know, what was going on. . . . All that seems to have been forgotten. The British need to believe that their Empire was run and eventually dismantled with restraint and humanity—as opposed to the disgusting brutality of the French, Dutch, Belgian, Portuguese, Spanish, and German colonial empires. (Neal Ascherson quoted in Parry, 2005 , p. 521)

Just as it is wrong to see torture as an historical anachronism, it is also misleading to claim that it is a new temptation or the product of exceptional circumstances (Athey, 2007 ). Historical amnesia and general lack of concern for the possible torture of others make it difficult to hold governments accountable for violations and pressure them to comply with the prohibition against torture. When no one is held responsible, torture is able to continue; as Rejali ( 2011 , p. 38) notes, “nothing predicts future torture as much as past impunity.” Despite international agreements and constitutional prohibitions, governments and their citizens have not demanded effective action to halt the spread of torture; in fact, they have been able to pretend that torture only occurs on an exceptional basis by relegating torture to hidden places and condoning its use against threatening and marginalized groups. This protects officials who ordered and implemented torture from responsibility. In order to confront torture, people must concern themselves with rights of all others, even those from “the torturable classes” (Conroy, 2000 , p. 251).

Links to Digital Materials

American Civil Liberties Union (ACLU) . The ACLU website includes thousands of searchable documents related to torture as well as a link to the partially redacted investigative report produced by the Senate Select Committee on Intelligence that describes human rights abuses by the CIA’s post-9/11 program of detention, torture, and other abuse of detainees. The website also includes links to statements demanding accountability for the CIA torture program and observations on the merits of legal cases against the US for its unlawful rendition, arbitrary detention, forced disappearance and torture of suspected terrorists.

Amnesty International (AI) . AI has documented torture for decades and regularly posts information on its website about torture practices in countries throughout the world, including annual reports on the state of human rights around the globe, as well as urgent action updates that contain information for letter writing campaigns calling for the release of prisoners of conscience at high risk of torture and other ill-treatment or even death.

Center for Constitutional Rights . The Center for Constitutional Rights focuses on promoting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights and its website contains extensive information and criticism of immigration sweeps, ghost detentions, extraordinary rendition, and other programs that deny individuals their right to due process. The website also includes descriptions of cases that have been brought against foreign officials and corporations for human rights abuses in US courts, as well as cases against US officials in foreign courts under the principle of universal jurisdiction.

Cingranelli–Richards (CIRI) Human Rights Data Project . The CIRI Human Rights Dataset contains data on government respect for 15 internationally recognized human rights in 202 countries from 1981 to 2011. It codes data from annual human rights reports produced by Amnesty International and the US Department of State and calculates a physical integrity index that measures state practices for torture, extrajudicial killing, political imprisonment and disappearances. The project was originally designed by Dr. David Cingranelli and Dr. David Richards.

Committee Against Torture (CAT) . The CAT is the body of 10 independent experts that monitors implementation of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by its State parties. The website contains information about the CAT and its work, as well as country-specific information.

Guantánamo Testimonials Project . The Center for the Study of Human Rights in the Americas at the University of California Davis has collected testimonies of prisoner abuse at the US naval base at Guantánamo Bay, Cuba since 2005 as part of a long-term project to assess the effects of the US war on terror on human rights in the Americas. The website includes testimonies of prisoners, officials from US intelligence agencies, interrogators and military guards, military physicians and psychologists, defense lawyers, and the Red Cross.

Human Rights Watch . This nongovernmental organization grew out of the 1978 Helsinki Watch to become a leading defender of human rights. HRW investigates human rights violations, including torture, in countries throughout the world and publishes investigative reports of country practices as well as annual reviews of human rights practices around the globe.

Ill-Treatment and Torture Data Collection Project . Unlike previous research that measured the rough number of alleged or reported cases of torture in a given country in a given year, this project codes data on four concepts: Incidence, Perpetrators, Motive and Judicial Response. The data draws on individual allegations compiled in Amnesty International documents.

National Security Archive . This NGO, founded in 1985 by journalists and scholars to check rising government secrecy and based at George Washington University’s Gelman Library, has a massive archive of declassified US documents. The award-winning archive includes tens of thousands of documents released through Freedom of Information and declassification requests, which has produced what one review called a “state-of-the-art index to history.”

Rule of Law Oral History Project . This project, part of Columbia University’s Center for Oral History Archives, was initiated in 2008 to explore the state of human and civil rights in the post-9/11 world and expanded in 2010 to study the statutory and constitutional challenges of the use of the detention facilities at Guantánamo Bay. The website includes an archive of interviews with former detainees, psychologists and activists, legal scholars, military prosecutors and officials, defense attorneys, judges, journalists, and representatives of human rights NGOs.

World Organization Against Torture (Organisation Mondiale Contre la Torture, OMCT). Created in 1986, the OMCT is a coalition of international nongovernmental organizations dedicated to ending torture, summary executions, enforced disappearances, and all other cruel, inhuman, or degrading treatment. The OMCT website contains information about grave human rights violations and campaigns to protect victims and pressure governments to respect international human rights norms and prosecute the alleged perpetrators of human rights violations. The website also contains links to annual reports on the work of human rights defenders.

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Today, torture is rightly seen as a medieval and inhumane way of treating a human being, regardless of its origin, social status, or any crimes committed. A number of influential treaties prohibit the use of torture. For example, article 3:1(a) of the Geneva Conventions restrict the use of “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” (Securing Liberty). Article 5 of The United Nations Universal Declaration of Human Rights claims that, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The same message is declared in The United Nations Convention Against Torture, and the Rome Stature of the International Criminal Court. Therefore, on a legislative level, the use of torture is not acceptable.

One of the basic factors of citizens’ trust in the country they live is their confidence in the fairness of the judicial system, which guarantees the propriety of crime and punishment (Koen). In the United States, for example, it is guaranteed by the 8th Amendment of the Constitution. However, accepting torture as, for example, a method of interrogation, means citizens can no longer feel safe if they have to deal with justice, even (and especially) if they are innocent. In this case, an investigative error and the following suspicion of an innocent person can result into the application of severe psychological and physical damage to this individual before their innocence becomes evident. Respectively, to stop the torture, the innocent victim will eagerly invent any ‘evidence’ their interrogators require.

Proponents of torture, who insist on the propriety of the use of torture in “special cases”—for example, against serial killers, or terrorists—possibly are not aware of torture gradually becoming a normalized practice; Amnesty International uses the term “torture culture,” and claims it emerges across the chain of command (Amnesty TV). Thus, Pakistan\Bosnian insurgent and terrorist Khalid Sheikh Mohammed was waterboarded 183 times during his interrogation by the CIA; in an Iraqi prison, Abu Ghraib, low-ranking soldiers were tortured in grotesque ways for sport. Examples are numerous, but they illustrate one fact: if torture is accepted even for “special occasions,” it gradually becomes a normal practice.

Torture in the modern world is a relic of the distant past. Though there are many proponents, claiming that torture is acceptable in a number of certain cases—such as against terrorists or maniacs—I believe they should not be tolerated due to several reasons. Torture is illegal: international laws prohibit the use of torture against anybody. The country that approves torture also risks to lose the trust of its citizens in itself and its judicial system. In addition, torture that is officially approved at least once tends to become a regular practice. There is no such thing as a “special occasion” when it comes to torturing.

“Torture is Just Means of Preventing Terrorism.” Securing Liberty. N.p., n.d. Web. 24 Nov. 2013. <http://securingliberty.idebate.org/arguments/torture>.

Koen, Yitzhak. “Dangers of ‘Just Once’ Tortures Application.” International Laws in Action. N.p., 11 Mar. 2010. Web. 26 Nov. 2013.

“5 Arguments Against Torture.” Amnesty TV. N.p., n.d. Web. 27 Nov. 2013. <http://tv.amnesty.org.uk/2011/07/28/5-arguments-torture/>.

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Is the Use of Torture Ever Morally Permissible?

In 1911, the author of the article on ‘Torture’ in the Encyclopaedia Britannica was able to state that ‘the whole subject is now one of only historical interest as far as Europe is concerned’ (Waldron, 2012, p.187). Torture’s relegation to mere historical interest did not last, however. The debate surrounding the moral permissibility of torture preoccupied the British throughout the 1960s and 70s, the Israelis throughout the 1980s and 90s and has continued to feature in philosophical discourse since 9/11 and the subsequent War on Terror (Gross, 2010, p.122; Neuhauser, Stoecker, 2014, p.302). I will argue that the use of torture is never morally permissible, principally because of its attack on and destruction of human dignity and autonomy. Defining what constitutes torture remains a vexed question, however, I will use David Luban’s (2014, p.450) definition that torture is the ‘assertion of the torturer’s limitless power and the victim’s absolute helplessness’ achieved through the ‘infliction of severe pain or suffering on a victim in the torturer’s custody or control’. Firstly, I will lay out my argument for torture’s moral impermissibly due to its degradation of human dignity and autonomy, followed by an exploration as to why such degradation should be impermissible whilst killing in war is permissible. I will then explore the objections to this argument, namely the ticking-bomb terrorist hypothetical, to which I will offer a reply. I will then explore the argument for torture’s moral permissibility through liability and the legal mechanics through which this could be facilitated, before offering a final reply to these arguments.

I argue that torture is never morally permissible due to its violation of dignity and autonomy, this being unacceptable when living in a moral and just society. I argue we should uphold a standard of morality that affords all humans a sufficient level of dignity and agency, a level that torture subverts. The pain and suffering inflicted during torture is significant, however, it is this pain in conjunction with the complete powerlessness and subservience to a malign enemy that destroys the victim’s autonomy and dignity (Luban, p.449). The primacy of these values and the ‘inviolable nature of human dignity belies any justification’ for torture (Sung, 2003, p.199). Torture victims are forced into experiencing levels of disgust, shame and subservience that no moral society should inflict upon another human being (Hartogh, 2014, p.206). Torture destroys the integrity and agency of the victim’s personhood, personality and life experience, reducing their existence to ‘a kind of anti-life’ (Luban, Shue, 2012, p.863; Sussman, 2006, p.230). This deontological view rejects the consequentialist outcomes of torture, but declares torture morally impermissible on grounds that these moral rules should be applied to even the most heinous of individuals, as it is a principle of humanity that we respect these fundamental values in all people (Leidner, 2018, p.159; Meisels, 2010, p.195). I also argue that the instrumentalisation of the torture victim, using the victim purely as a means, is immoral to a degree that it should not be permissible under any circumstances. This is a broadly Kantian view that the victim becomes ‘a suffering instrument of the torturer’, having pain inflicted upon them solely for the purpose of destroying their will and for their continued use as a means for the torturer’s ends (Juratowitch, 2008, p.87).

This argument elicits the question of how one can propose the absolute moral impermissibility of torture whilst declaring killing in war morally permissible. I would argue that torture can be morally impermissible whilst not mandating absolute pacifism, primarily because of the fundamental difference between how torture and killing in war impinges human dignity. Dignity is a fundamental facet of human life that must be afforded to all, however, as much as killing destroys life, it does not by necessity destroy dignity (Shue, 1978, p.125). On a battlefield, there is a fundamental rule, both morally and legally, that one cannot harm those who are defenceless. However, torture necessitates the defencelessness of its victim and as such, it cannot be considered under the same moral and normative guidelines. Further, on the battlefield, there is a degree of reciprocity wherein combatants have a fair chance and ability to defend themselves against threats (Roth, 2005, p.390). Torture, however, breaches this reciprocity and condemns the victim to a level of degradation and dehumanisation that is especially cruel as although killing takes a life, torture abuses it (Ignatieff, 2004, p.137). This abuse is particularly morally abhorrent as it does not just degrade and debase the victim’s humanity, it forces the victim to become complicit in their own debasement and an accomplice in the destruction of their own dignity and agency (Conroy, 2000, p.169; Randall, Lutz, 1991, p.109; Basoglu, 1992, p.205).

The extent of this abuse is best elucidated by David Sussman (2005), whose Neo-Kantian view argues that torture not only violates dignity and agency, it turns this agency against itself and forces the victim to become complicit in their own violation, meaning that torture is not just the destruction of basic humanity but the forced self-betrayal of oneself. This level of abuse on basic values and enforced self-abuse should not be permitted in a moral society. Sussman (p.19) argues that torture is especially insidious as it goes beyond just disrespecting these values, it is a ‘deliberate perversion’ of them, turning an individual’s dignity and agency against itself. Torture forces the tortured to become an active part in their own degradation, for example, in Abu Ghraib, torture victims were forced to masturbate in front of their captors, displaying their most private of thoughts and acts to others (Sussman, p.22). Soldiers can kill each other in combat, they can even kill their prisoners, however, only a torture victim is compelled to offer up their own intimacy and sense of self to be used against them, further contributing to the extreme destruction of dignity and autonomy that torture inflicts (ibid). Therefore, torture should be considered under a different moral and normative framework to active combat. Its degree of cruelty and destruction is so severe, including the infliction of self-betrayal and complicity in one’s own degradation, that it warrants absolute moral impermissibility.

The primary objection to this argument stems from the consequentialist tradition, most notably represented by the ticking-bomb terrorist hypothetical (TBT). Jeremy Bentham formulated the first scenario that resembled a TBT hypothetical, with Jean Lartéguey popularising the scenario in the 1960s (Allhoff, 2012, p.89; Davies, 2012, p.3; Hassner, 2018, p.90). The TBT scenario comes in many forms, however, almost all invariably involve a captive terrorist who has knowledge of the location of a bomb that will go off and kill numerous people, with torture potentially revealing its location (Farrell, 2013). The argument follows that allowing numerous people to die, by not torturing the terrorist, is a far greater harm than the harm inflicted on the terrorist. This is a purely consequentialist argument that ignores the immorality of the act of torture and focuses exclusively on the outcomes, disregarding the moral implications of torture and focusing on a utilitarian cost-benefit analysis. An extension of this utilitarian approach can be seen in Mirko Bagaric and Julie Clarke’s (2005, p.611) five conditions that, if met, would make torture ‘morally defensible’, including the number of lives at risk, the level of wrongdoing of the potential torture victim, and the immediacy of the harm posed.

Richard Posner (2002, p.30) argues that there has been a long history of suspending human rights at times of severe emergencies, especially when many lives are at stake, with the TBT scenario providing just another instance in which human values and rights that would normally be respected can be violated for the greater good. This has led to torture being labelled the ‘lesser of two evils’, with torture being morally permissible and necessary if the potential good was for the benefit of the public at large (Gert, 1969, p.623; Parry, 2004, p.160). This, however, leads to a moral dilemma, whether to respect the right of the prospective torture victim not to be tortured, or to protect the innocent civilians’ lives. Michael Walzer (1973) puts forward a Neo-Machiavellian argument whereby those in a position of authority have a responsibility to ‘dirty their hands’ and sanction torture for the sake of their fellow citizens. As such, torture in these scenarios becomes morally permissible, however, its permissibility is down to the fact that it is excusable, not justifiable.

My response to the TBT argument is threefold, initially based on the implications of the consequentialist logic, secondly, based on the unrealistic nature of the TBT hypothetical, and thirdly on the immorality of using such a hypothetical. The TBT’s consequentialist logic means that those who favour this approach must legitimately consider ‘as much torture, on as many innocents, as is required to avoid greater harm’, thereby eliminating their ability to have ‘any moral compass independent of outcomes’ (Juratowitch, 2008, p.83-4). Further, the TBT’s focus on utilitarian outcomes neglects to account for the ‘higher pains’ that torture inflicts, including psychological impacts such as dread, shame and humiliation (Twining, Paskins, 1978; Randall, Lutz, 1991, p.28-30). The infliction of these ‘higher pains’ is what facilitates the destruction of dignity and autonomy and condemns torture to its moral impermissibility, a factor that the consequentialist fails to recognise.

Secondly, I argue that the TBT argument should be removed from all philosophical consideration entirely as its inability to bear any resemblance to reality renders the hypothetical and its implications meaningless. The hypothetical’s premises make it near impossible for a TBT scenario to ever actually occur; we could never be sure of the premises upon which it is founded with the certainly that TBT necessitates (Mayerfield, 2008, p.114; Schepple, p.325). I would argue that this leads the argument to fall into the deductive fallacy, whereby its conclusions are invalid due to the reliance on empirically questionable premises (Bufacchi, Arrigo, 2006, p.360). Hypotheticals can ‘clear away the messiness of the real world’, however, the clarity that the TBT hypothetical demands the audience to subscribe to includes a set of premises and false assumptions that amount to ‘intellectual fraud’ (Mayerfield, p.113; Luban, p.45). As such, I argue we should disqualify the TBT argument and its conclusions from consideration, especially as we are aware of the reality of the destruction of the victim’s humanity via torture.

Thirdly, it is immoral to include the TBT argument in considerations of torture’s moral permissibility. The immorality of the TBT hypothetical stems from its manipulation of its audience as it conveys an ‘incomplete and one-sided picture of reality’, in which the victim’s humanity is ignored and supressed in order to focus on the deliberately crafted utilitarian outcomes (Thaler, 2018, p.105). This dehumanisation detracts from the humanity of the victim and makes authorising torture a morally attractive option. This manipulation is compounded by ‘idealisation’ – the adding of positive features to the hypothetical – such as the ability to save hundreds or thousands of innocent lives, to induce the hypothetical’s audience into supporting torture whereas in reality, those positive features are rarely, if ever, present (Shue, 2006, p.231). Furthermore, the TBT hypothetical is ‘constructed as a moral romance’ that simplifies the moral complexities of the situation ‘in order to enlist sympathy’, inducing the audience to lend their support for practices that have implications far wider than the hypothetical acknowledges (Finlay, 2011, p.422, 432). Subscribing to these hypotheticals, therefore, is irresponsible and immoral.

However, there is still an objection to the absolute moral impermissibility of torture grounded in the concept of liability. This has chiefly been advanced by Jeff McMahan (2008), who argues that the terrorist has a responsibility for the threat that they pose to innocent individuals, this responsibility makes them liable to be tortured if the torture is a means of saving innocent lives from the terrorist’s actions. The terrorist used their autonomy to choose to pose this threat to innocent lives, as a result, if torture is the only way to save lives then it was his autonomy that has led him to be liable to torture, making the torturer morally excused (ibid, p.99). McMahan (2018, p.200-3) rejects the consequentialist view and bases the permissibility of torture on the liability of the victim to experience torture that is used in a defensive way, much as defensive killing in the face of imminent lethal threats is allowed. This argument was also put forward by Jeremy Bentham, who said of a criminal refusing to cooperate that with ‘every moment that he persists in his refusal he commits a fresh offence’, arguing that they are ‘committing an ongoing offence’ that makes them liable to further pain (Twining, Twining, 1973, p.312; Meisels, p.170). This logic has been adopted by numerous scholars who contend that if there is a sufficient level of ‘culpability’ or ‘moral guilt’ in the potential victim, or if the victim ‘acted sufficiently unjustly’ and if the torture would ‘save his victims or potential victims’, then it would be morally permissible (Moore, 1989, p.326; Machan, 1990, p.94; Kamm, 2004, p.65; Steinhoff, 2006, p.337).

Although McMahan proposes that torture can be acceptable in principle, he argues that this does not mean individuals deserve to be tortured or that it should be legal practice. However, there has been one notable argument for the moral and legal permissibility of torture; torture warrants. The concept of a torture warrant has primarily been offered by Alan Dershowitz, with an ex ante authorisation of the practice via judicial channels. Dershowitz (2002a, p.477) proposes that if the authorities had a suspect who was withholding information that could save lives and there was a reasonable chance that with the use of torture such information would be released, they could go to a judge who could issue a torture warrant. Dershowitz (2002b; 2002c, p.158) acknowledges that this could legitimise torture to a dangerous degree, however, he states that warrants would only be issued if there was an ‘absolute need to obtain immediate information in order to save lives’, and that it would eventually lead to fewer instances of torture. Other scholars, such as Charles Krauthammer (2005), have also argued that there should be ‘limited legal permission to use torture’, as long as it is kept within the defined institutional constraints and it could yield information that might not be available via other means.

Neither of these objections are morally or practically compelling. Regarding liability, McMahan (2008, p.104) declares that despite his conclusion that torture may be morally permissible in principle, this ‘is of virtually no practical significance’ because the institutional implications should prohibit torture from ever occurring. I would add that, regardless of institutional implications, the victim would not be liable to torture because no human should be liable to the destruction of dignity, autonomy and humanity that torture inflicts, and no human is liable to a level of self-betrayal and complicity in their own destruction that torture involves. In response to Dershowitz’s argument, I would argue that his myopic vision of judicial authority and moral philosophy makes us choose between ‘national security and human dignity’, and is an oversimplification that ignores the moral nuances that the debate requires (Sung, p.209). In addition, Dershowitz’s suggestion of torture warrants would likely require an ex parte decision from the judge, with no opposing litigation or argumentation, eliciting doubts over how rigorous, impartial and informed the decision from the judge could be (Roth, p.401).

However, the most pertinent response to these objections to torture’s moral impermissibility stems from torture’s destruction of dignity, including the dignity of the institutions that allow the practice. The English Bill of Rights of 1689 outlawed torture when it prohibited ‘cruel and unusual punishment’, and legal, political and civic institutions have benefited as a result (Miller, 2012, p.123). Rejecting the moral impermissibility of torture means abandoning the most fundamental bases of democracy and decency and by employing such cruel means a state can no longer claim to be based on justice, but on tyranny. It would damage institutions because allowing torture would render institutions built on liberal and moral values complicit in the planned destruction of another human’s dignity and autonomy, being a practical and symbolic setback for civilisation (Roth, p.405). As Luban (p.48) notes, torture ‘is a microcosm … of the tyrannical political relationships that liberalism hates the most’, devaluing the trust in and authority of ‘civil, military and legal institutions’ (Bufacchi, Arrigo, p.362). Further, institutionalising torture would destroy the dignity of those who carry it out, as they will be subjected to principles and practices that no individual with moral integrity should have to be exposed to (Wolfendale, 2006, p.287). It degrades those who carry it out and can cause irrevocable psychological damage, debasing their humanity and sense of self (Kateb, 2001, p.186; Krulak). As such, even if one accepts there are imaginable scenarios in which torture could be morally permissible, it would automatically cease to be acceptable due to the irreconcilable degradation of the institutions that allow it, and by extension, the degradation of the dignity and humanity of those who allow it, carry it out and are subjected to it (Waldron, 2005, p.37).

In conclusion, I argue that torture should be absolutely morally impermissible because of its impact on the most fundamental elements of humanity, principally, dignity and autonomy. These should be afforded to all humans, with torture not only disrespecting victims’ dignity and autonomy, but destroying them through the self-betrayal and complicity the victim is forced into. Objections to torture’s moral impermissibility range from hypothetical justifications to liability arguments, with the former being based on immoral and unrealistic logic and the latter not accounting for the severe destruction of values that torture inflicts. Allowing torture would, by extension, destroy the dignity, integrity and moral authority of our democratic and liberal institutions, thereby making it a moral necessity to conclude that the use of torture is never morally permissible.   Bibliography

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Shue, Henry, 2006, Torture in Dreamland: Disposing of the Ticking Bomb’, Case Western Reserve Journal of International Law, Vol. 37, No. 2-3, pp. 231-239

Shue, Henry, 1978, ‘Torture’, Philosophy & Public Affairs, Vol. 7, No. 2, pp. 124-143

Spee, Friedrich, 1631, Cautio Criminalis (Sumptibus I. Gronaei)

Steinhoff, Uwe, 2006, ‘The Case for Dirty Harry and against Alan Dershowitz’, Journal of Applied Philosophy, Vol. 23, No. 3, pp. 337-353

Sung, Chanterelle, 2003, ‘Torturing the Ticking-Bomb Terrorist: An Analysis of Judicially Sanctioned Torture in the Context of Terrorism’, Boston College Third World Law Journal, Vol. 23, pp. 193-212

Sussman, David, 2005, ‘What’s Wrong with Torture?’, Philosophy & Public Affairs, Vol. 33, No. 1, pp. 1- 33

Sussman, David, 2006, ‘Defining Torture Case’, Western Reserve Journal of International Law, Vol. 37, Nos. 2 -3, pp. 225-230

Thaler, Mathias, 2018, Naming Violence: A Critical Theory of Genocide, Torture, and Terrorism (New York City, NY: Columbia University Press)

Twining, William, Paskins, Barrie, 1978, ‘Torture and Philosophy’, Proceedings of the Aristotelian Society, Vol. 52, pp. 143-194

Twining, William, Twining, P., 1973, ‘Bentham on Torture’, Northern Ireland Legal Quarterly, Vol. 24, No. 3, p. 305-356

Waldron, Jeremy, 2005, ‘Torture and Positive Law: Jurisprudence for the Whitehouse,’ Columbia Law Review, Vol. 105, No. 6, pp. 1681-1750

Waldron, Jeremy, 2012, Torture, Terror and Trade-Offs: Philosophy for the Whitehouse (Oxford: Oxford University Press)

Walzer, Michael, 1973, ‘Political Action: The Problem of Dirty Hands,’ Philosophy and Public Affairs, Vol. 2, No. 2, pp.160-80

Wolfendale, Jessica, 2006, ‘Training Torturers: A Critique of the “Ticking Bomb” Argument’, Social Theory and Practice, Vol. 32, No. 2, pp. 269-287

Written by: Leo Barnes Written at: Durham University Written for: Christopher Finlay Date written: April 2020

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5 Reasons Why Torture Does Not Work and Can Never Be Justified

Torture is one of the most extreme forms of human violence, resulting in both physical and psychological consequences. It has been used for thousands of years and it is still occurring throughout much of the world. The right to freedom from torture is a universally recognized human right and one of the foundations of international law. Torture, as well as cruel, inhuman or degrading treatment, is banned in all times and cannot be justified.

The most precise definition of torture is outlined in the UN Convention Against Torture, Inhuman or Degrading Treatment or Punishment (CAT) , which defines it as “Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

Even though torture is internationally outlawed and illegal, many countries and armed group still use it. In fact, many countries have failed to criminalize torture and other forms of ill-treatment under their national laws and continue to defy international law by applying various torture methods. Therefore, this article offers an overview of five reasons why torture should be banned and why it does not work as an appropriate method of punishment.

1 Torture is an Ineffective Interrogation tool

States often use torture methods to extract confessions or certain type of information from people. However, often information gained through torture are not reliable. Usually, the application of physical, mental and psychological pressure forces victims of torture to say or confess anything just to end the painful experience. According to some psychologists, the stress caused by torture will most often affect parts of the brain associated with memory and force victims to lie or repeat information they heard from their torturers. This, basically, means that interrogators may unintentionally plant false memories in victims and compromise their cognitive functions which are key in obtaining accurate information.

Therefore, information obtained through torture is not reliable because victims will often say what their torturers want to hear to make the pain stop. For example, detainees who are physically abused during an interrogation might accuse someone else of their deeds, hoping they will be tortured instead. Additionally, detainees might often tell lies simply because they do not have information that interrogators are asking them for.

Legally, the absolute prohibition of torture and other-ill treatment is non-derogable. This means that torture methods cannot be used even in times of emergency. Confessions and information obtained through torture, thus, do not count as evidence under international law. However, in many countries today, torture and other forms of ill-treatment are used to obtain information usually from detainees or suspects for committed crimes.

Evidence, information or confessions obtained through torture are not legally recognized in both international and national laws for the simple fact of torture not being scientifically proven. As previously mentioned, a person will say or do anything under torture or even under a threat of torture to avoid the pain. One such example was provided by the Amnesty International that reported on the case of torture that took place in 2012 when “Mexican marines broke into Claudia Medina’s home and took her to the local navy base where she was given electric shocks, wrapped in plastic and beaten, and forced to inhale chilly.” Medina later stated that if she had not been tortured, she would have not signed the statement.

This results in uncertainty whether information that a person provided is true or not. Thus, all states should consider other, more reliable ways, to collect information while applying principles of humanity and respecting human rights.

2 Torture Causes Psychological and Physical Trauma

Torture methods used on victims can be of both physical and psychological nature, such as prolonged solitary confinement or sleep deprivation. Both psychological and physical torture complement each other causing severe pain to people who were affected by it. Infliction of physical torture is in most cases reflected in psychological consequences.  Applying torture methods of these types on someone can directly damage their memory and cause an extreme psychological trauma. For example, if affected by one of these methods, victims may become so mentally broken that they might not even remember simple things such as their home address. Similarly, victims who are deprived of sleep may become confused and disoriented, which can cause them to convince themselves in things interrogators are suggesting them and, in this way, produce false information. By being tortured in this way, victims’ memory, emotions, and an ability to deploy attention is deeply degraded causing severe psychological trauma , post-traumatic stress and depression.

However, infliction of torture methods does not cause psychological trauma only to victims, but also to the torturers. Most often, state authorities and politicians who support torture are not the ones who inflict it personally. They leave to others to enforce their policies and apply torture methods, which affects them on a psychological level by being rooted deeply within their brain circuit. This means that both victims and perpetrators face a range of devastating psychological consequences.

The use of torture physically destroys people. Torture methods, such as sham executions, rape, sexual assaults, humiliation and sleep deprivation often leave physical consequences on affected persons such as chronic pain in certain parts of body and inability to lead a healthy and prolonged lifestyle. For this reason, people who had been affected by torture should have access to redress such as medical care, reintegration into society, rehabilitation and counseling.

3 Torture is Illegal and Cannot Be Justified

When states and governments use torture to achieve their goals, they often see it as necessary to provide some type of justification for its implementation. Governments and politicians must find ways to excuse and explain the use of torture, while those who publicly advocate for it must find arguments that would justify torture as a practice that is globally and universally regarded as immoral and condemned.

From a legal perspective, the use of torture is never justifiable because it is illegal in international law, as well as in majority national and domestic laws, such as within the UK Human Rights Act adopted in 1998 which states that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.

The prohibition of torture is enshrined in many conventions and declarations within the international human rights and humanitarian law . For example, in the Article 5 of the Universal Declaration of Human Rights it is enshrined that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Similarly, it was established by the Geneva Conventions and the Additional Protocols that serious violations of international humanitarian law, including torture and other inhuman treatment, constitute war crimes in both international and non-international armed conflicts.

As already mentioned, perhaps the most significant international law instrument used to combat torture is the Convention Against Torture, or the CAT. Most of countries in the world have signed and ratified the CAT and other international human rights treaties and conventions. The CAT came into force in 1967 and it requires that countries take active steps to prevent torture and that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Thus, the prohibition of torture is a fundamental principle of international law, and it applies to all countries, even the ones that have not signed or ratified the CAT.

4 Torture Bears Legal Consequences

Inflicting torture on someone does not end without consequences. Both international and national law instruments oblige countries and governments to search for persons suspected to have committed torture acts and bring them before justice. Countries have a duty to enact legislation that prohibits acts of torture and other forms of ill-treatment and punish those who commit them and those who order them to be committed. Individual perpetrators, thus, can be held criminally responsible for committing these crimes.

According to the Article 4 of the CAT, all countries must ensure that all acts of torture are regarded as offences under their criminal law, including attempts to commit torture and any acts by any person that constitute participation or complicity of torture. States are obliged to punish these acts in an appropriate manner, as well as to establish jurisdiction over the acts of torture where the offences are committed in any territory under their jurisdiction, or where the alleged offender or the victim is a national of the country. Additionally, countries are obliged to search for persons suspected to have committed acts of torture and make torture an extraditable offence in any extradition treaty they sign with other country.  As already mentioned, torture methods are ineffective interrogation tool and evidence extracted from torture cannot be used as evidence. Under Article 15 of the CAT, any statement made as a result of torture shall not be invoked as evidence in any proceeding, unless it is used against a person accused of torture as evidence that the statement was made.

5 Torture is Immoral

There is a common misconception that generally torture is linked solely to issues of counter-terrorism and national security due to high profile torture cases around the world. However, according to research conducted by the Amnesty International, torture can happen to anyone , including people from ethnic minorities, student activists, protesters, petty criminals, and to those people who were simply in the wrong place at the wrong time. In most cases it is marginalized and poor people who get beaten, raped by police and humiliated, with no one to hear their cries for help and help them.

It does not take long for one to conclude that torture acts are cruel, immoral and dehumanizing. According to advocates against torture, torturers rather treat as a thing than a person. That means that they dehumanize their victims to make it easier to torture them. Torturers use the physical body of the victim as a tool to achieve their goals and not as component part of a person. They also use torture to destroy the autonomy of the victim. For example, some societies have use different torture methods to suppress independent and individual thinking and force people to adopt the desired way of thinking. In these cases, victims are tortured until they accept to abandon their own belief systems and views and adopt those of their torturers. Torture, in this way, violates the human dignity and rights of the victim. However, the acts of torture do not only harm the victims, but it also damages the moral reputation of the government and institution that carries it out. The use of torture by an institution can lead to internal dissent and damage its integrity.

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About the author, ada hasanagic.

Ada Hasanagić is a human rights professional currently working as a researcher at the Delegation of the International Committee of the Red Cross in Sarajevo, Bosnia and Herzegovina. Previously, Ada graduated with honors from the Sarajevo School of Science and Technology and the University of Buckingham in the fields of Political Science and International Relations. Also, she earned a master’s degree in Democracy and Human Rights from the University of Sarajevo and University of Bologna.

Argumentative Essay on Torture Being Acceptable

Should Torture Be Acceptable?

Introduction

The issue of torture is one of the most complicated ethical issues in the modern social context. It is useless to reply to the question of whether torture is right or wrong because the answer would always be too subjective. However, it makes sense to define whether torture is acceptable in modern society. In her article for The Perspective, Goldring claims that “according to the Geneva Conventions, ‘torture, cruel or inhuman treatment and outrages upon personal dignity’ is legally prohibited.” The widespread practice of the past whose goal was to get information as soon as possible seems to outlive itself in the current democratic world.

Torture is not acceptable in the modern world

However, when it comes to prison, behind the walls, the practice is still widespread because it is one of the most effective ways to make people speak. Even with this apparent benefit, torture is not acceptable in the modern world because of a variety of reasons. The strongest of them include a high probability of torturing innocent people and the return to the principles of totalitarian dictatorship, which is a significant step back in the social development of a highly civilized society.

First of all, there always exists a high chance that the information received by means of torture would not be accurate. It is mentioned on the website Human Rights First that “the application of psychological, emotional, and/or physical pressure can force a victim of torture to say anything just to end the painful experience” (“Statement of National Security”). With this evidence, torture becomes an entirely unuseful means because it does not only fail to achieve its primary purpose to receive information, but it promotes violence against violence, which contradicts both moral and legal laws of humanity. Thus, torture is not justified.

The torture does not work in the way it is expected to

Moreover, it is not only about the moral side of the issue and the peculiarities of modern democratic order, but also about the numerous amounts of scientific data which prove that torture does not work in the way it is expected to. The neuroscientist Shane O’Mara conducted substantial research to prove that in the case of torturing a person, it is not their will which decides to speak the truth or not. It is the peculiarities of the human nervous system that might make it impossible for a person to speak the truth even if they wish. Under conditions of pain, fear, extreme cold, sleep deprivation, and other means that have a strong negative influence on the human psyche, there is a high chance of memory, mood, and cognition damage, as well as a distorted state of consciousness. Carl Elliott concludes that “torture does not persuade people to make a reasoned decision to cooperate, but produces panic, dissociation, unconsciousness, and long-term neurological damage” (“The Neuroscience of Interrogation”). This evidence proves the unreliability of the received data in these conditions and does not justify torture not only as an unacceptable means for democratic values, but also as an unuseful means in its very essence beyond ethics and morality.

In conclusion, it makes sense to say that as a means to get vital information as soon as possible, torture would always seem an attractive tool for those in power. There exists a significant probability that it would be entirely impossible to avoid this phenomenon in a society entirely because there are always those who are for and against torture. However, both science, ethics, and evidence proves that torture is an ineffective means of the past that does not have a useful application in the modern world. Therefore, torture cannot be justified as a means on the legal level.

Works Cited

Goldring, Kira. “Can the Use of Torture Be Justified?” The Perspective, 2017, https://www.theperspective.com/debates/can-use-torture-justified/. Elliott, Carl. “The Neuroscience of Interrogation: Why Torture Doesn’t Work.” New Scientist, 2015, https://www.newscientist.com/article/mg22830471-200-torture-doesnt-work-says-science-why-are-we-still-doing-it/. “Statement of National Security, Intelligence, and Interrogation Professionals.” Human Rights First, 2014, https://www.humanrightsfirst.org/resource/statement-national-security-intelligence-and-interrogation-professionals.

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Torture Issue Nowadays Essay Example

The research paper covers the topic of the torture issue. To be more specific, it studies the question whether torture is acceptable in the modern world. In order to understand the problem, the essence of the torture issue is described. Two opposite points of view on the question are represented. The arguments for and against torture usage are covered. The opinion of the investigator and the arguments, which support the position of the researcher, are discussed. The conclusion concerning the unacceptability of torture in the contemporary society is made.

Is Torture Ever Acceptable?

The modern society is a democratic one: it defends human rights and struggles for peace and equality for people. Nevertheless, humanity still has a number of unsolved issues, which contradict the norms of the democratic society. Persons can often face such occurrences as wars, terrorist attacks, murders, cruelty among adults and even among young generation. One more issue, which takes place in today’s democratic society, is torture. This is the question that provokes debates all over the world. The main topic, which is discussed in relation to this problem, is whether torture is acceptable and can be justified. People have two opposite points of view on this problem as well as on all contradictory issues of the current time. Some individuals confirm that torture can be justified, especially when it refers to the violent criminals such as terrorists, murderers, maniacs, and rapists. Others express opposite position and tell that nobody deserves being tortured, no matter who a person is. Thus, it is evident that torture issue is controversial and disputable, and it does not have a single solution yet.

People have tried to define the torture during different periods of time. As a result, there are different definitions of this phenomenon based on various beliefs, time and country of origin, social norms, and other criteria. Nevertheless, in spite of the differences, which influenced definitions of researchers, the main idea remains common: torture is “the torment and suffering of the body in order to elicit the truth” (Peters, 1996, p. 1). However, analyzed concept can not be only of physical nature but also of psychological one. Both types of torture are used to make a victim do or say what is needed for his/her abuser.

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Torture is a widespread phenomenon nowadays. It can occur in everyday life in any family or community, or it can take place on the governmental level. In both cases, this action is cruel and destructive. The research paper is about to have a closer look at the issue discussed in order to understand how and why it is used in the contemporary democratic society.

As it has been mentioned above, torture can be of physical and psychological nature. It is evident that physical torture is different from the physical abuse such as beating or other kind of hurt. As a rule, physical torture is aimed at provoking physical pain of a victim. The second type of torture is psychological one. While carrying out this type of torture, an abuser makes everything possible to make a victim suffer emotionally. An abuser can threaten a victim with hurting him/her, force to look at pain of his/her close people, make him/her feel psychological stress by threatening with kidnapping relatives or friends of a victim.

Torture has been used by people since ancient times, and it still takes place in the modern world. Any person can face torture in everyday life: for example, at home or at school, university, or work. It is a frequent occurrence when children or teenagers threaten each other or beat those, who are weaker to get what they want. Domestic violence can be also regarded as a kind of torture. Nonetheless, torture is also used on the governmental levels. It is applied by police officers to obtain information from violent criminals or terrorists. Some researchers, such as Henry Shue (1978), confirm that sometimes torture serves not as a way to know the truth, but even more – to defend a country: “. . . a number of governments are heavily dependent upon torture for their very survival” (p. 124).

Viewpoints on the Issue: For and Against

It is evident that torture is an inevitable part of life nowadays. However, it is cruel as for the society that aims to be democratic, and it is condemned by numerous politicians and governments of the world. Nevertheless, it still exists. This incongruity determines debates around the torture issue. As it has been stated previously, people are divided into two groups on the basis of their beliefs: one group of individuals justifies torture, while another one condemns it and says it should not be applied to anyone. According to the data from Debate.org (n.d.) survey, the above-indicated two groups of opponents are almost equal: 51% of people justify torture, and 49% condemn it respectively. In this regard, it is needed to consider the main arguments for and against torture issue to understand its essence better.

First of all, it is necessary to mention that people, who think that torture is acceptable, do not agree it should be always applied. In most cases, they believe that it ought to be acceptable only in relation to such violent criminals as terrorists. One of the arguments, which are used to defense torture, is that it can be used if it “both meets some test of reasonableness in prospect (minimum torture necessary, no alternative, high probability of success, and so on) and succeeds” (Davis, 2005, p. 173). Thus, it is obvious that groundless and ill-conceived torture will not be justified. The second argument, which defenses torture, is referred to terrorists, who threaten a great number of people. In relation to this case, the researchers confirm that modern state of society force governments “to inflict pain on one guilty person than place at risk hundreds or thousands of innocent people – potential victims of a terrorist atrocity” (Bellamy, 2006, p. 124). Moreover, it is confirmed that torture can be not only acceptable but even justified. Therefore, there is a belief that it can be “morally justified in just those cases where the moral right of the innocent to live preempts the moral right of the ‘guilty’ to be exempt from ‘retaliation’” (Davis, 2005, p. 171).

Another point of view is that torture is unacceptable in the contemporary society

The following arguments are represented in order to prove this belief.

Torture is considered as unacceptable because it contradicts moral and legislative norms (Chazelle, 2009). Torturing people means doing harm to their health and sometimes even life. However, Universal Declaration of Human Rights (n.d.) and domestic laws of majority of countries claim that “everyone has the right to life.” Moreover, there is an article which says that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (Universal Declaration of Human Rights, n.d.). It is evident that torture contradicts laws, and that it why persons condemn such actions. One more thing, which is used to argue that torture should not be used today, is that the information got under torture is not always true. For instance, some people, for example, terrorists, who are convinced that their actions are right, and they conduct a terrorist attack for some important goals, will not say any information. The “goal” for which they do their evil is more important than their lives, and they do not care about themselves. Hence, it is probable that they will suffer pain and even die but will not tell the truth. However, there is another type of individuals who cannot suffer physical or psychological pain that is why they will tell wrong information or tell anything in order to stop torture. Thus, it turns out that torture is not effective, and there is no reason to use such cruel methods.

Having analyzed different points of view on the torture issue, and having found arguments for and against torture in the works of the researchers and journalists, it became interesting what reasons ordinary people provide while discussing the issue. with respect to the issue, I carried out a survey, which included 5 questions. The respondents were the Internet users. The results of the survey are based on the answers of 37 people, who took part in the process. The majority of respondents believe that torture is acceptable and even justified. As for the arguments for the torture usage, people name getting important information from terrorists and criminals, making criminals feel and understand what their victims feel when suffering, evaluating torture as effective way of getting information, and so forth. Moreover, people, who support torture, are sure that punishment, which violent criminals and terrorists get, is not fair in relation to pain, which their victims and families of victims suffer. Opponents, who regard torture as an unacceptable occurrence, stress that it is immoral, illegal, ineffective, and non-democratic. Moreover, they say that torture causes torture, and using this method for any purposes contradicts the norms of democratic society and is destructive. While studying information concerning the issue, it has been found out that people often encourage others to think what they would do if their relatives were kidnapped by terrorists. In this way, the last question of the survey is aimed to understand how people are going to behave in such situation. As it turned out, the majority of people hesitated to answer the question, and could not give a clear reply.

Torture Is not Acceptable

Having analyzed information concerning the torture issue, its essence, and different points of view on it, I would like to express my opinion. Regardless the fact that the majority of people support the idea that torture is acceptable and justified, I cannot agree with this position. I believe that torture is unacceptable in the modern society. I would like to represent the arguments to support my perspective.

First and foremost, I believe that it is illegal. As it has been mentioned above, the Universal Declaration of Human Rights includes the statement that no one can be tortured. Thus, if someone is tortured, it is illegal. It appears that if police officers or representatives of government allow things like torture to occur, even in case with violent criminals or terrorists, it means that they break the law. Thus, they give bad example to ordinary people to follow. As government is an example for the nation, it can lead to negative consequences. For instance, people may start thinking that if government can torture citizens, so they can too, and cruel behavior can spread in everyday life of individuals. On the other hand, torture may be used with good intentions – to know where terrorists hid the bomb or to save innocent persons. However, if government decides to fight criminals with cruel measures, the representatives of authority will be remembered as tyrants, and there is no guarantee that cruel methods will always work.

The second argument against torture is that it destroys democratic society. Nowadays, the majority of countries of the world consider themselves being democratic states. In other words, they protect human rights; they want to make the world peaceful, and change life of people for better. Nevertheless, the goals of democratic society disagree with their actions. For example, journalists often speak about America’s attitude to the torture issue. What is more, it is a well-known fact that the USA is a democratic country. On the contrary, it is confirmed that Americans used such torture techniques as hypothermia, water boarding, prolonged isolation, stress positions, and sensory deprivation to “enemy combatants” who were imprisoned in Guantanamo Bay (Lindley, 2013). Thus, it is evident that even democratic countries use tortures. Nonetheless, each time using such cruel methods, they make society less democratic. Torturing people, no matter who they are, governments or police officers contradict democratic laws, and return to society of ancient times, when individuals did not know other kinds of treating criminals except threatening, beating, or killing them. However, ancient people understood that such measures were not as good as they thought, and they took steps to make society better, and created democracies. Modern humans live in such society, and I believe that it is necessary to correspond to the democratic norms otherwise people will degenerate, and return to the society of ancient times with its cruelty.

As it has been discussed earlier, torture can be of two types – physical and psychological. No matter what kind of torture is used, both of them have negative consequences. Hereby, I believe that physical tortures as well as psychological ones “leave deep psychological wounds” (Lindley, 2013). Period of torture, which was experienced by a victim, will forever remain in his/her mind. At best, torture will be only a negative experience and unpleasant memory for the whole life of a victim. It can also lead to numerous psychological disorders such as stress, insomnia, constant fear of pain and people. At worst, torture can provoke negative traits of character in individuals, e.g. spite and desire to revenge. Even if a person, who was tortured, will not revenge, his/her relatives or friends may want to hurt those who had made their close person suffer. It is obvious that revenge for physical and psychological pain will be cruel, and, certainly, it will be regarded as illegal actions. Thus, the whole family or families can be imprisoned. If torture is applied to people, who are not citizens of this or another country, it can even lead to the international conflict or even war.

One more argument against torture is that the information, which is got from victims, is not always true. As it has been noted above, people, who are tortured, can be nominally divided into two groups – those, who will never tell the truth under any pain, and those, who will tell anything in order to avoid sufferings. To the first group terrorists can be determined, whose beliefs are grounded on religion. As a rule, religion is the strongest belief, which can rule people. Therefore, terrorists are often desperate, and they have nothing to lose. It makes such persons strong and invulnerable to any threats: they are not afraid to die; they do not value lives of their families (if they have them at all); there is nothing sacred for them except their aim. With regard to the issue, they are ready to suffer any pain and even die in order to perform their “mission.” The second type of people is those who cannot suffer pain, and they will tell false information or say anything to stop tortures. Such behavior will not lead to positive results. For example, if a criminal, who hid a bomb in a public place, gave false information during the torture and police evacuated people from the place, which was named by a criminal, a number of innocent people, who were in the real place of explosion, will be injured or die. Thus, no matter to which people torture is applied, it is an ineffective way of getting information.

The last but not least argument against torture is that it is not always used to real criminals. It is evident that the workers of police, courts, and governments are people, and all humans are predisposed to make mistakes. In a situation when an innocent person is wrongly accused in terrorism, one is considered being a violent criminal. Of course, the innocent person will refuse every accusation and will not tell anything concerning a crime because he/she really has no relation to it. However, as police is sure that this is a real criminal, and he/she lies or tells nothing, police officers will search for more “effective” methods of getting information. In this case, if such person is tortured as a violent criminal, harmful consequences can occur: an individual will definitely suffer pain, and negative psychological effects of torture will remain for the whole life. This situation can have two solutions. At best, law enforcement agencies will understand that a person is innocent, free him/her and apologize. Nonetheless, hardly their apologies will recover a state of a tortured. At worst, a charged unfairly will not be able to suffer pain and will admit a crime he/she did not commit, and will spend years in prison. Besides, no one knows what kind of person will return after years of punishment for a crime, which he/she did not commit.

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Regardless the fact that modern society is democratic, the torture issue still remains controversial and disputable. People discuss this problem for years, and express two opposite points of view. Some individuals believe that torture can be acceptable and even justified nowadays. The others confirm that torture cannot be applied to anybody, no matter who a person is – an innocent citizen or a terrorist. The advocates of torture tell that this method of getting information is acceptable because it is effective. Additionally, it gives criminals a possibility to feel what their victims have felt, and it is fairer than any punishment criminals get for their crimes. People, who are against torture, believe that it is immoral, inhuman, illegal, and ineffective.

In my opinion, torture is unacceptable in the contemporary world because of several reasons:

• First of all, it destroys democratic society.
• Secondly, torture usage on the governmental level serves a bad example for ordinary persons, and it can lead to the rise of cruelty levels in everyday life.
• Moreover, torture always leads to psychological disorders, which make people more aggressive than they were before.
• Torturing people can result into such negative consequences as desire to revenge, international conflicts and wars.
• At last, torture is not an effective way of getting information, and sometimes it can be falsely applied to innocent people.

Although the torture issue is still debatable and unsolved, I believe that people should pay more attention to this problem in order to address it. Besides, they should do it in the way which will not do harm to both human rights and democratic society.

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Argumentative Essay on Torture

It is rather difficult to determine whether torture is ever acceptable. From different points of view, it can be said that each person has his own opinion considering the issue, and this issue is rather contradictive. It is known that are thousands of various situations of torture and consequently, in some of them torture is being used, for example to prevent terrorist attacks or to get the important information.

Thesis: Torture is unacceptable, as all human beings have their rights, and there are other modern ways of punishment and ways to get information from people. Many experts find torture unnecessary and claim that it is not effective any more.

Obviously, there are other methods of getting useful information that can save lives, but it has also been proven that not all people can be tortured and as a consequence tell the truth. Some of them lie when they are tortured and some of them just say nothing. Many experts think that torture is effective, but the other side of this issue is still unclear, as even an innocent person can get tortured by a mistake and then, probably, killed. In this case torture is unacceptable.

Torture has been known since the ancient times as a means of punishment, deterrence, and to obtain confessions. In particular, a variety of torture is widely used in ancient Egypt, Assyria, Ancient Greece, Ancient Rome and other ancient nations.

Torture – is the infliction of deliberate torture (both physical and mental) in order to obtain information or to punishment. In a broad sense, torture is considered as any procedure causing human suffering and pain, regardless of the circumstances and objectives, regardless of whether the sentence ends with this procedure or followed by homicide. In the narrow sense it is usually understood as “physical abuse, torture during interrogation”.

Some people think that “torture, when used for interrogative purposes is acceptable and necessary, as long as it is within legal means, specifically the Geneva Convention. This would therefore not apply to what we consider enemy combatants, primarily terrorists who do not fight under a flag or in a uniform and do not fight for any particular state.”, according to Is torture acceptable? (2010).

Among people, their personal tolerance and the lack of information do not allow them to fully imagine the situations when torture is used, the cruelty that was prevented with the help of torture methods. There is a lot that the society does not know, and, for example, for the terrorists torture can be a unique way of getting information. According to Torture acceptable, says former NCA chief (2005), “A former chairman of the National Crime Authority says torture is acceptable against terrorists and in some domestic criminal situations. “What I’m trying to establish is that this is a legitimate issue to be on the table for debate… but people start saying you’re a Nazi because you want to debate it.””

Under torture, false testimony can be given as innocent and guilty, as a betrayal of the traditions of the countries can been considered as a grave sin. At the same time, there are exceptions. If the evidence can be quickly checked repeatedly (for example, if you want to know the lock code or the location of the safe money in the apartment), it tries to be able to learn the correct information. If the authorities are able to identify even a small number of underground workers, it is more important than a large number of innocent victims, from the standpoint of the authorities of torture in this case can also be effective.

“There are a number of important issues affecting the criminal justice system being debated at present without being diverted by some ludicrous concept of introducing legalized torture by police as an investigative technique.”, as stated in Torture acceptable, says former NCA chief (2005).

After 2001, the world’s attention was drawn to the harsh interrogation methods used by the CIA in secret U.S. prisons, designed for foreigners suspected of involvement in terrorist activities. There was a special resonance to news reports on torture of Iraqi prisoners by Americans at Abu Ghraib prison. To avoid the use of such methods in 2005 in the United States has passed a special law on the treatment of detainees- The Detainee Treatment Act.

The majority of people find torture unnecessary and claim that it is not effective any more. There are many other ways to prove whether the person it telling the truth and to get information from him, as the technologies nowadays are advanced and other techniques can be also used. According to Most Americans Oppose Torture Techniques (2004), “Given pro and con arguments, 63 percent in an ABC News/Washington Post poll say torture is never acceptable, even when other methods fail and authorities believe the suspect has information that could prevent terrorist attacks. Thirty-five percent say torture is acceptable in some such cases.”

The main international instrument in the fight against torture is the Convention against Torture and Other Cruel, In human or Degrading Treatment or Punishment, adopted by Resolution 39/46 of UN General Assembly on Dec. 10, 1984. There were acceded to the Convention 127 countries. Art. 1 of the Convention defines “torture” as follows: “any act by which a person is intentionally inflicted severe pain or suffering, whether physical or mental, to get from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected, and or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by a public official or other person acting in an official capacity, or at the instigation of or with the consent or acquiescence . It does not include pain or suffering arising only from lawful sanctions, are inseparable from these sanctions or incidental.”

All in all, it can be said that there will never be a one unique opinion considering the issue and it will always be contradictive. In many countries it is believed that the testimony that were received during torture were truthful. It is difficult to realize that tortures exist in the modern world, and that the consequence of this fact is that there is a threat of terrorism. Torture is also generally condemned in the moral and ethical considerations, and I think that torture is unacceptable in the modern world. According to Most Americans Oppose Torture Techniques (2004) , “Perhaps surprisingly, views on torture and physical abuse are virtually identical whether the targets are suspected terrorists, or suspects in recent attacks against U.S. forces in Iraq and Afghanistan. (Half the public thinks international terrorists are involved in those attacks.) Just over six in 10 call torture unacceptable for either type of suspect and just over half call abuse unacceptable in either case.”

Is torture acceptable? (2010). Retrieved February 23, 2011 from http://www.uspoliticsonline.net/formal-debate/23837-torture-acceptable.html Most Americans Oppose Torture Techniques (2004). Retrieved February 23, 2011 from http://abcnews.go.com/sections/us/polls/torture_poll_040527.html Torture acceptable, says former NCA chief (2005). Retrieved February 23, 2011 from http://www.smh.com.au/articles/2005/05/22/1116700585264.html?from=rss

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Kamala Harris or Bust

By Tressie McMillan Cottom

Opinion Columnist

President Biden’s decision to withdraw was probably a foregone conclusion a week ago.

Major donors and trusted advisers had made their preference known. So had many members of the House and the Senate. These are people whose political identity was formed in the same political context as Biden’s. They believe that the system works. They believe that dedicated public servants supersede mercurial electoral politics. Whether you agree with their assessment of politics, this nation needed an institutionalist in 2020. Biden was the most institutional candidate.

This election is a referendum on the kind of politics that made Biden: Can the system still be trusted to work?

That is a question about the future, not the past. Ultimately, neither Donald Trump nor Biden represent the future. In Trump’s case, he is a stopgap for a clearly articulated Republican strategy to rework every American institution, in some ways, by destroying those institutions. In Biden’s case, he does not look like a candidate who could counter the threats Trump and the Republicans pose to this country.

Vice President Kamala Harris is the only choice to replace him. That now makes her the leader of the Democrats’ future. The Democratic National Convention is not the time to litigate her ability to take over for Biden. The time to do that was in 2020.

This election is not a competition between two equally matched candidates with merely competing visions for America. It is a race between a man who intends to be king and the party that stands in his way. The only conversation Democrats should be having with voters at this point is that a second Trump presidency will remake this country as we know it.