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Separating The Moral From the Practical Argument Against Torture

05/25/2011 12:15 pm ET

Three weeks ago, The New York Times vented a secret Department of Justice memo approving the use of torture as a means of interrogation. President Bush shrugged the memo off insisting, "This government does not torture people." Times columnist Frank Rich, who begs to differ with the president, published an opinion piece Sunday (10/14) in which he insisted that, with the latest wink and nod at water-boarding, the U.S. has crossed the Rubicon from an incompetent to an immoral democracy. As the title of his article suggests, "The Good Germans Among Us," Rich reasons that at this point, those of us who do not scream out to our congressperson are as complicit in evil as the "Germans who professed ignorance of their own Gestapo."

In his brief against torture, Rich recalls a meeting with Americans who, during World War II, extracted important information from prominent Nazis without lifting a fist. I suspect that Rich has other grounds for insisting that we put the electrodes away, but many of the arguments he and others voice today against the use of torture as truth serum are based on the claim that torture is simply not efficacious.

There is, I believe, a serious flaw with this line of argument, for it in effect states that if we could in fact beat the truth out of people on a consistent basis then we might be justified in doing just that.

The Israelis, from whom we seem to take a lot of cues on these issues, have been practicing so-called "enhanced interrogation techniques" for generations. There are members of their intelligence community who believe that there are situations in which pain and threats can be used to elicit life-saving information. Human rights groups reported that between 1988-1994 Israel detained more the 100,000 Palestinians. A third of them were violently interrogated. As for those who fret that a person in severe duress will say anything, just make it plain that if the information is misguided the authorities will be making a visit to the detainee's family.

In the mid-'90s, legislation was proposed in Israel to make torture legal and thus, more humane, as it would then be open to government scrutiny. During the debate, Andre Rosenthal, the lawyer who pressed for the suspension of the injunction against the rack said: "No enlightened nation would agree that hundreds of people should lose their lives because of a rule saying torture is forbidden." Upon learning that one of the High Court judges was playing Pilate and would not offer a ruling either for or against the use of physical force, Rosenthal fumed, "That's the most immoral and extreme position I have heard in my life....[A] thousand people are about to be killed and you propose that we don't do anything." According to Rosenthal and others, when you have someone in custody who may be able to tell you the whereabouts of a bomb, it is the moral obligation of the state to do anything necessary to make him or her speak.

For all of the intelligence officers who have come forward to talk about the unreliability of torture techniques, there are others who swear that it sometimes works, and sometimes is more than enough. As the supporters of the harrowing machine would have it, if a few innocents are banged around, that's unfortunate -- as unfortunate as other forms of collateral damage.

It is not enough to raise doubts about torture as a method. When the critics of Gestapo techniques base their condemnation on statistics and the testimony of selected experts, they are in peril of conceding that under certain circumstances it might be appropriate, or even obligatory, for the defenders of freedom to take out their tongs. Those of us who would swear off the kinds of practices that we have been sub-contracting to other nations have to separate the moral from the practical arguments. We have to maintain that there are some practices, like slavery, that are wrong unconditionally. The Universal Declaration of Human Rights provides the premises for this position and clearly instructs us that there are limits to what one human being can do to another, without losing his or her humanity.

Professor of Philosophy Gordon Marino teaches ethics at St. Olaf College, Northfield, MN.