Wednesday, November 22, 2006

Ticking time bombs: theory versus application

Last night in class a colleague was giving a presentation on the deportation to torture under the Immigration and Refugee Act in Canada. Simply put, despite the Charter, the Convention Against Torture, and the opinions of the Supreme Court (namely Suresh), the practice of officials in Canada put individuals at unacceptable risk of being deported to countries where they will face torture.

It must be stated that this is not the norm by any means, but is rather a combination of statutory loopholes, disastrous obiter dicta, imperfect access to justice and other minutiae.

At any rate, the discussion moved to the ethics (or lack thereof) of torture, and the question was put to the class: Do you believe that torture is absolutely unacceptable, no matter what the circumstances? Everyone I saw raised their hand, and I'll admit, I was very close to doing so, but figured I'll abstain. Then the corollary: Do you believe that it is possible, under exceptional circumstances, for torture to be justified? Again, I nearly didn't raise my hand, but I suppose my ornery side won out because I did, and as I did, so did my professor.

I'll admit, I was relieved. It seems odd, but I think there is pressure on people my age and in my field to maintain particular ideological stances, and if you are (as I generally am) a pro-liberty lefty social justice advocate, you are not allowed to suggest that torture might be theoretically permissible.

But then, I hold an awful lot of "contradictory" opinions on a theoretical level. For instance:

Is torture ever ethically/morally permissible?

THEORETICALLY: Yes, under the so-called ticking-time-bomb scenario, propagated in the 1990s and much abused by apologists for the American post-9/11 rendition/detention/interrogation regime, of which Alan Dershowitz is perhaps the most well-known. The theoretical scenario requires that the "torturer" have 100% certainty (or perhaps, simply, beyond a reasonable doubt) that the person they are torturing has the information needed to prevent a disaster, and that there is no other way to get this information. However...

IN APPLICATION: can never be 100% certain about a person's guilt before the fact--even if they confess, if could be a false confession. Combine that with overwhelming evidence that torture is just not terribly effective, and you have a situation where the probability of a prospective "permissible" torture situation actually meeting the criteria is so infinitesimal that, legally, it should be considered nil. To me, the dilution of this argument to the idea that any chance torture might yield helpful information = total justification is ridiculous.

Besides all of this, there is the simple fact that we already have a legal instrument in place which could exculpate any person charged with torture who actually faced the ticking-time-bomb scenario. The defense of necessity is a well-recognized "out" for those who are forced by circumstances to commit criminal acts to prevent greater harms. By maintaining the criminality of torture, as with murder, we simultaneously condemn it, while recognizing that in extreme and rare circumstances it is justifiable, but that this justification will have to be made in open court.

Alan Dershowitz and others have said that torture is inevitable, and therefore it would be better to legalise and regulate it, thereby increasing transparency. I maintain that the prosecution/necessity model fulfills much of the same purpose without creating an official approval of torture (and I am certainly not the first to say so).

As I understand it, this is also Michael Ignatieff's standpoint, which is why I am irritated by those who claim he is pro-torture. In fact, in his much-debated op-ed on the issue, he stated, inter alia, that:

[regarding Dershowitz's proposal]
This legalisation of torture seeks to prevent it from becoming a first resort of interrogators in terrorist and criminal cases as well. The proposal seeks to bring the rule of law into the interrogation room and keep it there. All this is well-intentioned, but as an exercise in the lesser evil it seems likely to lead to the greater.

Legalisation of physical force in interrogation will hasten the process by which it becomes routine. The problem with torture is not just that it gets out of control, not just that it becomes lawless. It inflicts irremediable harm on both the torturer and the prisoner. It violates basic commitments to human dignity, and this is the core value that a war on terror, waged by a democratic state, should not sacrifice, even under threat of imminent attack.

And also:

Torture exposes agents of a democratic state to the ultimate moral hazard. The most plausible case for an absolute ban on physical torture relates precisely to this issue of moral hazard. No one should have to decide when torture is or is not justified, and no one should be ordered to carry it out. An absolute prohibition is legitimate because in practice it relieves public servants from the burden of making intolerable choices.


For torture, when committed by a state, expresses the state's ultimate view that human beings are expendable. This view is antithetical to the spirit of any constitutional society whose raison d'etre is the control of violence and coercion in the name of human dignity and freedom.*

I also urge anyone interested in the issue of national security versus human rights to read his book The Lesser Evil: Political Ethics in an Age of Terror. Also anything by Kent Roach on the subject of post-9/11 jurisprudence. Please don't take this as a blanket approval of all of Ignatieff's work, as my mind is far from entirely made up about him...on this, however, we are in complete agreement.

* The Finacial Times, May 14, 2005, and availible online.

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