The "Baffling Question": Why People Support Torture Despite Its Illegality

The use of torture is unequivocally and emphatically prohibited under international law. The Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment, first signed in 1984 and entering into force in 1987, bans:

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...information or a confession, punishing him for an act he...has committed or is suspected of committing, 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. [1]

The convention has 77 signatories, and 147 parties, meaning that it enjoys widespread support throughout the world. [2] The definition is both broad, prohibiting torture in the abstract, and also specific, banning multiple forms of torture (retributive, for information, discriminatory action). At the same time as the legitimacy of the convention is so widely acknowledged, many countries, including the United States, still utilize torture. This apparent hypocrisy poses, to use the words of Michael Gross, a "baffling question...why the United States and some of its allies blatantly employ unlawful means of warfare." [3] Further complicating this question is the fact that large segments of the general public in the United States still support the use of torture under some circumstances. A 2009 poll by the Washington Post found that 40% of Americans still believe that "there are cases to consider torture." [4] This occurs despite the fact that the convention against torture bans its use even in "exceptional circumstances." [5] In a separate poll 50% of respondents favored the use of the "enhanced interrogation techniques" authorized by the Bush administration, even as at least 60% of them explicitly acknowledged that some of the techniques constituted torture. [6] Outside of its obvious illegality, support by both state parties and the general public for torture furthermore clashes with widely held academic views regarding the morality of torture and empirical evidence surrounding the effectiveness of torture. Due to the potential consequences of allowing torture to be justified, namely its abuse by those entrusted to carry it out, is it sufficient to dismiss this disconnect between governmental and public opinions on torture and international law as representing mere ignorance of the facts? Does the public, and, to a lesser extent government officials, just not know the specifics of international law and how issues of torture's morality and effectiveness are discussed academically? [7]

Holding such a view, of an ignorant ill informed public and conniving, secretive government leaves behind a fairly pessimistic outlook for the future of human rights. It implies that simple ignorance is enough to allow, or essentially condone, human rights abuses such as torture. In the end, though, the view held by both government officials and the general public, that torture may in fact by justified in some instances, actually represents a thoughtful analysis of the costs and benefits of torture's potential use. Whether this reasoning occurs either consciously or subconsciously is irrelevant, as is the fact that its conclusions may be undesirable. That the cost benefit analysis is being performed, in other words torture is not taken lightly, leaves a residual optimism for the way in which society as a whole deals with important moral issues such as the use of torture.

Torture has always held a privileged spot in the history of punishment. Through the way in which it seeks to strip away another person's secrets by abjectly debasing an individual's body it is understandable that torture is considered more then just plain "cruelty" or "suffering." Jaime Mayerfield, for instance, describes torture as "cruelty...combined with cowardice." [8] David Sussman notes that:

there is a core concept of what constitutes torture that corresponds to a distinctive kind of wrong that is not characteristically found in other forms of extreme violence or coercion, a special type of wrong that may explain why we find torture to be more morally offensive than other ways of inflicting great physical or psychological harm [9]

Sussman continues by adding that in torture "the asymmetry of power, knowledge, and prerogative is absolute: the victim is in a position of complete vulnerability and exposure, the torturer in one of perfect control and inscrutability." [10] These modern conceptions of torture, however, run into the historical fact that torture was both legal and morally accepted in societies ranging from pre-medieval to early modern. [11] Academic moral arguments against torture therefore need to be seen for what they are: a modern invention. Nevertheless, moral arguments appear as both an appropriate venue for discussions of torture (because of the special significance torture is ascribed above other forms of punishment) and a fitting starting point for a discussion of torture's support (because of the copious amounts of time and energy devoted to discussions of torture's morality or immorality). Laws, especially international ones, are not explicitly moral, meaning that an immediate disconnect exists between the legality and morality of torture.

In order to fully understand the moral arguments that are used to either justify or delegitimize the use of torture, it is first necessary to understand the moral reasoning behind punishment. The use of torture invariably falls under the category of punishment. It can either be solely retributive (torture for specific actions) or as a means to gain information (torture for collusion with wrongdoers, or to punish for withholding information). All punishment, especially torture, requires justification because it involves causing pain and suffering. [12] While suffering in and of itself is generally considered to be "bad," or immoral, there are countless opportunities in which suffering as a form of punishment appears to be morally justified. Mitchell Berman explains:

We ordinarily suspect that suffering is a bad, one we have moral reason not to cause. But when that suffering is deserved, it is not a bad. We frequently say that people have a right against the intentional infliction of pain. But such a derivative right is just a common implication of a more abstract and foundational right-the right to be treated with respect as a person [13]

Here Berman hits upon one of the crucial pieces of evidence cited as to why it is morally justified to torture individuals. If an individual commits a wrong deed, then they deserve to be punished. If they are withholding information in order to commit more wrongs, then it is justified to try and get that information from them. In other words the right to prevent the pain of others triumphs the right to not have pain inflicted on them. Roger Trinquier, an unabashed user of torture as a member of the French military in Algeria, views torture as just another tool to be used in the prevention of criminal acts. " We must not trifle with our responsibilities. It is deceitful... to refuse interrogation specialists the right to seize the truly guilty terrorist and spare the innocent." [14]

Berman notes, however, that there are other rights that have to be taken into account when weighing the morality of torture. These "abstract and foundational" rights, including the "right to be treated with respect as a person" help form the base of an argument for torture's inherent immorality. In the view of opponents of torture, the right to have one's body respected (not tortured) supersedes the potential informational benefits that torture might yield. As Amihud Gilead states, " human beings are neither machines nor safes from which the truth can be extracted by 'mechanical,' not to say brutal means." [15] Here Gilead advocates for two things: the inherent sanctity of human individuality, and the ineffectiveness of torture as an extraction technique. If humans have inherent worth in and of themselves (a very Kantian argument) then to torture them commits an immoral act that cannot be offset by whatever information might be gained. [16] Gilead follows up this train of thought by declaring "each person, however atrocious, has an absolute right to her or his singularity, especially the right to self-defense as to the very existence of that singular individual." [17] If one ascribes to this view of human rights and dignity, then torture is immoral under all circumstances.

Strong supporters of torture as a morally justified action, though, will not base their arguments in such language. Rather, they will base their reasoning in utilitarian principles. While torture may in and of itself be an immoral act, if by causing suffering one can prevent greater potential suffering, then ultimately the act can become at the very least less immoral, at the most moral. While torture may be immoral, it is furthermore no more immoral then other actions occurring in war. [18]

The classic utilitarian moral argument for torture is the "Ticking Time Bomb" scenario. All variations of this scenario hold to the central premise that there are a number of bombs set to go off in crowded areas at a certain time. The terrorist responsible is captured, and, if tortured, will reveal their location, saving numerous civilian lives in the process. Ignoring the simple fact that such a specific scenario has never existed in the long history of counter terrorism, [19] such a scenario is obviously appealing. It provides a clarity and simplicity that cannot be found in the real world. [20] A large number of people who favor the use of torture in certain circumstances use the scenario precisely because of its apparent clarity and logic. The only problem with using such utilitarian calculus to morally justify torture is that it is hard to adapt to real world scenarios. These "real world" scenarios will invariably differ from an idealized scenario such as that presented in the "ticking time bomb." Also, if torture is viewed to be moral under utilitarian reasoning, then it is not only valid and justified, but also required. [21]

A profound question that the "ticking time bomb" scenario also posits is the assumption that torture can be used effectively as a way of extracting information. [22] This assumption is made by most supporters of torture, and accepted as virtual fact. Trinquier, for instance, in closing his work on the subject of modern warfare notes that "it's absolutely essential to make use of all the weapons the enemy employs. Not to do so would be absurd." [23] Nowhere in his book, though, is a defense of the effectiveness of torture. The closest he comes is the admonition that "If the prisoner gives the information requested, the examination (read torture) is quickly terminated, if not, specialists must force his secrets from him...as a soldier, he must face the suffering, and perhaps the death, he has heretofore managed to avoid." [24] Works that support torture in general dance around the issue of torture's effectiveness, and don't address it directly. Understanding if torture "works" or not is essential for understanding whether or not it is justifiable. If torture is ineffective then utilitarian justifications for its use simply collapse. [25]

The main problem with assessing the effectiveness of torture from an academic standpoint is that, quite understandably, there has not been a lot of empirical research on the subject. Torture's illegality notwithstanding, there are serious ethical concerns regarding research on human subjects that have to be taken into account. In many instances the empirical evidence or facts simply does not exist. Jeannine Bell writes that there is ample anecdotal evidence where torture has worked on terrorist suspects, but there are similar anecdotes where suspects are either highly resistant to torture or falsely confess to actions under torture. [26] It is also important to keep in mind that stories about successful uses of torture or similar interrogation techniques are usually either electively chosen, or originate with intelligence officials, in whose best interest it is to expand the use of torture. [27] Torture is almost always an extremely complicated procedure in the modern world, something that most casual observers tend to ignore. It is hard to imagine these procedures being perfect in every instance, especially given the fact that they have not been able to be studied in depth. [28]

These gruesome practical details of modern torture lend strong doubt to the effectiveness of torture. Darius Regali takes a simple approach, asking the question quite bluntly that "does torture work?" in his book Torture and Democracy. His answer is a quite emphatic no. [29] What little actual empirical evidence exists also seems to support the idea that torture is ineffective at best. Nazi concentration camp experiments that relied on exposure to extreme heat or cold to cause suspects to confess did not yield a reliable way to get information from suspects. [30] Historically speaking, a study of court records from France during the 16^th through 18^th century found that after being tortured a full 67% to 95% of accused did not confess. [31] Ultimately the widely held belief that torture is effective just doesn't hold up to careful analysis. Even when a suspect does confess or give information, that information must be suspect because it is given under duress. As Jean Arrigo clearly states, "torture interrogation provides only data, not truth." [32]

If torture is therefore ineffective, which calls into question utilitarian moral justifications, why do many people still support it? This may be because of simple ignorance of the facts surrounding torture. The empirical evidence which debunks the idea that torture is effective is either buried in obscure academic publications or long forgotten government studies. The average citizen cannot necessarily be held accountable for not possessing this knowledge. When pressed on the issue of torture, therefore, individuals must use another mechanism to form an opinion on it. The supposition that torture is effective is most likely based on preconceived notions and experiences regarding pain and punishment. This heuristical approach [33] would invariably involve an individual recalling circumstances under which they revealed information under pressure or pain. Given a wealth of individual experience it is easy to imagine individuals accessing these memories, whether they be from childhood games, or other traumatic life circumstances. [34] Heuristics also provide an easy explanation for how individuals, when posed with the question of torture's morality, could easily respond with an answer that follows utilitarian reasoning. Because of the way in which hypothetical scenarios such as the "ticking time bomb" are set up, individuals can easily choose the correct utilitarian argument, torture of a suspect, even if they are unaware of the complex reasoning behind such an answer. [35] In other words, the moral questions and questions of efficacy surrounding torture are already present in the general public lexicon, waiting to be tapped. While there is great value in debating such questions in depth and in abstract ways, in many cases the knowledge, and subsequent answers, is present in simple heuristical reasoning. "Gut" morality or reasoning provides the answers.

It is possible to argue that if the general public uses heuristics in order to come to conclusions, then this still represents an imperfect solution. Heuristics don't rely on complex reasoning, and the latter is almost always held up as being more "safe" or "correct." Also, as has been seen in opinion polling, if the public uses heuristics in their conclusions about torture, they often reach the conclusion that torture is sometimes justified. Many individuals would see as undesirable. [36] Nevertheless, that the public is using any mechanism to debate these issues, is, I believe, a cause for optimism.

It is likely that government officials, who have access to empirical evidence, as well as the time and energy to debate issues of torture in the abstract, are able to craft much more carefully nuanced approaches to the use of torture then the general public. Ultimately the creation of any government requires the vesting of authority, and power, in an institution that is only somewhat responsible to its citizens. Outside of the practical reality that it is impossible to have the general public weigh in on issues of national security such as torture, most citizens would not want to have the moral burden of deciding whether to torture or not placed on them. The government takes on that role in order to relieve its citizens of that burden. Worries about the misuse of torture by a government must be coupled with concerns about other governmental abuses of power. The United States, by permitting an open discourse about torture (even if that discourse's advice is ignored), does not seem like a government about which average citizens should be concerned. [37] John Parry notes that there will always be the "historical fact" that democracies torture. [38] That fact most likely will not change in the future. Ultimately however, because the mechanisms exist for an analysis of the morality and usefulness of torture both among government officials and the general public, we can hope that its uses will be both limited, and appropriate, as much as they can be when utilizing such a brutal technique.

[1] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 1. http://www.un.org/millennium/law/iv-9.htm.

[2] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en

[3] Gross, Michael L. Moral Dilemmas of Modern War: Torture, Assassination, and Blackmail in an Age of Asymmetric Conflict. Cambridge: Cambridge University Press, 2010. Page 2

[4] Washington Post-ABC News Poll January 16, 2009. http://www.washingtonpost.com/wp-srv/politics/documents/postpoll011709.html

[5] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 2.

[6] Steinhauser, Paul. "Poll: Don't investigate torture techniques." CNN Politics. May 6^, 2009. http://politicalticker.blogs.cnn.com/2009/05/06/poll-dont-investigate-torture-techniques/ Accessed on January 24, 2011

[7] Obviously we would hope that government officials would know international law. Still, they might be ignorant of some of the moral reasoning behind torture. The general public might be ignorant on all counts.

[8] Mayerfield, Jamie. "In Defense of an Absolute Prohibition of Torture." Public Affairs Quarterly, Vol. 22, No. 2 (April 2008):109

[9] Sussman, David. "What's Wrong With Torture?" Philosophy and Public Affairs, Vol. 33, No. 1 (2005): 3

[10] Ibid, 7

[11] Einolf, Christopher J. "The Fall and Rise of Torture: A Comparative and Historical Analysis." Sociological Theory, Vol. 25, No. 2 June 2007: 104.

[12] Berman, Mitchell N. "Punishment and Justification," Ethics, Vol. 118, No. 2 (January 2008): 266.

[13] Ibid, 280

[14] Trinquier, Roger. Modern Warfare. New York: Fredrick A. Praeger, Inc., 1964. Page 23.

[15] Gilead, Amihud. "Torture and Singularity," Public Affairs Quarterly, Vol. 19, No. 3 (July 2005): 163.

[16] Gilead also adopts the explicit language of Kantian morality, stating "Torturers treat their victims as objects, not as ends in themselves but merely as means to achieve the torturer's objectives" (Gilead 164). Compare with Kant's " Act in such a way that you treat humanity, whether in your own person or in the person of another, always at the same time as an end and never simply as a means." ( Grounding for the Metaphysics of Morals)

[17] Gilead, 166.

[18] Sussman, 3

[19] Mayerfield, 111

[20] Ibid, 114

[21] Brecher, Bob. Torture and the Ticking Time Bomb. London, Blackwell Publishing, 2007. Page 72-3.

[22] Ibid, 16.

[23] Trinquier, 113.

[24] Trinquier, 22.

[25] Even if torture can be proven to work in some instances, that presents a fairly weak argument for its use.

[26] Bell, Jeannine. "Behind this Mortal Bone: The (In)Effectiveness of Torture." Indiana University School of Law-Bloomington Legal Studies Research Paper Series. (July 2008). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1171369: Pages 15-16.

[27] Mayerfield, 116.

[28] See Regali, Darius. Torture and Democracy. Princeton: Princeton University Press, 2007. Page 453, for an illustration of the complexity of modern torture through his description of an electrotorturer's mindset

[29] Ibid, 469.

[30] Bell, 18.

[31] Arrigo, Jean Maria. "A Utilitarian Argument Against Torture Interrogation of Terrorists." Science and Engineering Ethics, Vol. 10, (2004): 549.

[32] Ibid, 554.

[33] For a look at the psychology of heuristics, or decision making shortcuts, I would recommend Albarracín, Dolores and Robert S. Wyer. "T he cognitive impact of past behavior: Influences on beliefs, attitudes, and future behavioral decisions." Journal of Personality and Social Psychology, Vol 79(1), Jul 2000, 5-22 http://psycnet.apa.org/journals/psp/79/1/5/. And Cioffi, J. "A study of the use of past experiences in clinical decision making in emergency situations." International Journal of Nursing Studies , Volume 38, Issue 5 , October 2001, Pages 591-599. http://www.ncbi.nlm.nih.gov/pubmed/11524105.

[34] Obviously, I lack any empirical evidence to prove that individuals use heuristics when thinking about torture. Still, I think it is a compelling way to address the question of why individuals support torture despite its illegality. Obviously other decision making mechanisms are being used in drawing such apparently hypocritical conclusions.

[35] The calculus that saving two lives is better than protecting one life (that of a criminal) is fundamental to human rationality. Quantity is often viewed as better then quality, and here the quality of the one life being respected or saved is suspect, being that of a criminal. To definitively prove this assertion, however, empirical evidence would be needed to see whether assuming "quantity is better then quality" is actually a fundamental human predilection.

[36] See Mayerfield, "In Defense of the Absolute Prohibition of Torture" for an argument regarding this

[37] Jones, Gary E. "On the Permissibility of Torture." Journal of Medical Ethics. Vol. 6, 1980: 12-13

[38] Parry, John T. Understanding Torture: Law, Violence, and Political Identity. Ann Arbor, Michigan: University of Michigan Press, 2010.