09/12/2008 05:12 am ET Updated May 25, 2011

Legal Torture Is Still Wrong

The argument about torture has continued without resolution since the exposure of Abu Ghraib. Much of the discussion centers on the concatenation of three related, but nevertheless separate, questions: What is "moral"? What is "legal"? What is "effective"? The slippery linkage of the three questions is fully expressed in a familiar position that most Americans probably endorse: "Torture is both immoral and illegal, except when it extracts information that can prevent an impending terrorist attack." Stated simply, effective torture is legal and possibly moral, ineffective torture is both illegal and immoral.

Many people who oppose torture accept this logic and question the effectiveness premise of the argument. They point out that torture is almost always "ineffective" because it induces the victim to confess to any accusation or say whatever he or she thinks the torturer wants to hear. Torture, they argue, results in misinformation, and is therefore ineffective. By the defenders' own argument, then, it is also illegal and immoral.

While all evidence suggests that torture does produce boatloads of misinformation, this argument nevertheless fails to convince most people because it suffers from a narrow definition of "effective." The advocate of torture does not care that it is mostly ineffective. They feel that if only one victim in a hundred provides useful information (while the rest are innocent and have no useful information to provide), then torture is still an effective tactic and therefore useful. That one truth teller is going to provide information that prevents a terrorist attack. In that context, the ninety-nine innocent victims are just collateral damage, well worth sacrificing to the cause of saving (perhaps) 100 American lives. They are no more of a concern than the German and Japanese civilian casualties in World War II bombing raids.

But this logic carries us even further, because torturing all those innocent people is also "effective" in another way. Since the "war on terror" depends on finding culprits who are hidden among civilian sympathizers, torturing innocent people to extract information creates a deterrent against harboring "America's enemies." If even a few people (either the victims themselves or those who realize that they are vulnerable to torture) become inhospitable to the actual culprits, then there will be fewer attacks and American lives will be saved. Therefore, even indiscriminate torture practiced on innocent civilians is effective. and therefore legal and moral.

Therefore, any argument that accepts the logic that torture is justified if is "saves American lives" is doomed to accept wholesale torture.

Argument that torture is illegal is even more of a slippery slope. Consider this: the Nazis were very careful to pass laws legalizing all their activities, including the "Final Solution." The Bush Administration has been just as careful, using legal judgments, signing statements, and new legislation (think warrantless wiretaps) to define all of its recent depredations--including torture--as legal. The latest revelation is that U.S. legal officers told CIA interrogators they could not be prosecuted "if they believed 'in good faith' that harsh techniques used to break the will of prisoners, including waterboarding, would not cause 'prolonged mental harm.'" Since the "in good faith" clause makes guilt reside in the eyes of the perpetrator, validation of this principle would make even the most heinous crimes--including murder itself--legal (if the murderer did not think s/he was going to create "prolonged mental harm," then the death becomes accidental). This is just one among many examples of the mostly successful recent efforts to legalize torture.

The larger truth is this: whatever might be currently illegal can be made legal tomorrow by executive order, a judicial decision, a legislative act, or some combination of the three. Those who oppose torture are often comfortable pointing to the unadorned prohibitions in the Geneva Conventions (which, by virtue of their treaty status, are the law in the U.S.), but these legal bulwarks could already be a dead letter, pending a judicial judgment about the viability of President Bush's claims to the status of "unitary executive." In the meantime, all manner of executive interpretation makes a huge array of "harsh techniques" legal, even while the debate over the legality of waterboarding continues. This means that torture is already legal in the United States, and the ongoing controversy is about which forms of torture will be legally applied, and which ones the practitioners will have to conceal from public view.

The sad truth is that the only viable argument against torture is the moral one, and that requires that those of us who oppose torture take on the big cahuna of pro-torture arguments: "If you have captured the mastermind of a plot to explode an atomic device in downtown Manhattan, is it okay to torture him, in order to extract information that will allow you to prevent the device from exploding?" The answer has to be "no."