Late last month, the US Congress approved a bill which would give the President power to ‘reinterpret’ the Geneva Convention with regards to the treatment of detained foreign terror suspects, and authorise interrogation techniques that the convention declares illegal. In the past few days, I have been pondering the implications of this, and the wider moral debate about whether we can, in some circumstances, justify torture.
I wrote last year that I thought that the “‘ticking bomb scenario’ is an unhelpful hypothetical construct.” Clive Davis resurrects this argument with a pertinent, real life scenario from Mark Bowden, at a Carnegie Council symposium:

There was an article in The New York Times about a crime in Germany where a kidnapper had taken a 12-year old boy, and had buried him alive. He went to collect the ransom, and was caught. He was in custody, and refused to tell the police where he had buried the child. The police chief in this case threatened the kidnapper with torture, and he promptly told him where he buried the boy.

A powerful story indeed. However, what Clive doesn’t quote is the insight from the director of B’Tselem, who Bowden mentions later in the symposium. She said she would torture… but expect to be prosecuted for it:

But it has to be that I broke the law. It can’t be that there’s some prior license to abuse people.

I think we should call this the McClane Mitigation. No, that is not a mis-spelling of ‘McCain’, as in Senator John McCain (R-AZ), the presidential hopeful who was tortured in Vietnam. I do mean John McClane, the maverick cop from the Die Hard movies. The Bruce Willis character is the epitome of that brand of fictional policeman, who perpetually have to circumvent normal procedure, in order to stop some catastrophe or other. They of course gets an earful from their superiors, and we assume (though never see) some kind of post-credit inquiry, in which the transgressions are investigated and accounted for. Laws that most certainly have been broken, but the urgency of the situation, and actual lives saved, are taken in mitigation during sentencing. The jury convicts, but the judge is lenient, and some form of justice is served.
But even this is a slippery slope. The ‘ticking bomb’ could first be defined as a long-term threat to national security. “We might prevent another 9/11” becomes a catch-all excuse for routine torture. What a wonderful legacy for the victims.
There are several other moral objections to the tack taken by President Bush and his supporters. The first is the explicit xenophobia which runs through the legislation. It only applys to non-US citizens… which does beg the question of what would happen if an American were arrested on suspicion of terrorism. Ticking bombs don’t have nationalities.
When we make laws (and indeed, provide services), we expect them to be carried out uniformly throughout the land. This is not possible in the case of torture. The final problem with the scenario as outlined by Bowden, concerns the unreliability of the agent of torture. In his example (above), it was fortuitious that the policeman in question had the nerve to threaten torture at all (it was also lucky that it appears he did not actually have to carry through with his threats, but that is beside the point here). Torture, we are told, dehumanises everyone involved. What if a person, who finds themselves obliged to torture, discovers that they do not have the stomach for it? I forsee a situation where they are sued by the families of victims, on the basis that they did not do whatever was necessary to prevent the tradgey.
We are reassured that torture would be permissible in limited, unusual circumstances. But it is probable that in these same circumstances, those tasked with inflicting pain will have done nothing like it before! There would have to be guidelines, and we would have to endure a sickening public debate over what exactly was allowed (the euphemism-heavy debate in the US is already pretty horrible). Do they try the classic ‘electrodes to testicles’? At what amperage? Or should they opt for the more retro ‘removal of toenails’? What if the pliers are not available? With the state of UK public services as they are, it would be worse still, with the Right Hon. Dr John Reid MP having to declare Britains torture facilities “unfit for purpose”.