The Torture Debate and Civil Liberties

It is reported that there are to be no prosecutions for torture carried out during the Bush administration. President Obama has signalled abhorrence at these methods while steering clear of the legal and political quagmire of prosecution of operatives and those who gave legal advice.

We have known about torture for a long time. Even so, the United States has confronted the full extent of it over the last few weeks. There are many wise and thoughtful articles to digest on this subject. One aspect of the issue, which recurs constantly, is the so-called ‘ticking bomb scenario’. Is it permissible to inflict pain on someone if lives are at stake? It is amazing how saturated popular culture is with this scenario. It as if we are being softened up to accept that there are moments of moral ambiguity in the wicked world: torture is a bad thing, but sometimes those in authority need to take tough decisions.

An elegant riposte to the scenario is to be found in the latest interview in Harry Kreisler’s enlightening and long running series, Conversations with History. His guest is Jeremy Waldron, professor of law and philosophy at NYU School of Law.  In the course of an illuminating discussion he points out that the ticking bomb scenario is really an exercise in arithmetic. If someone disagrees you just double the numbers of potential victims until he or she caves in. But, argues Professor Waldron, most people reach a point where they can no longer sanction torture, no matter the numbers who might be saved. Would you use rape of a third party, for instance, or child abuse?

If the United States wishes to turn its back on this tawdry chapter in its history it will have to send a very clear signal. How this is done is a more important challenge than deciding whether or not to prosecute individuals. Constructing arguments about the value of intelligence garnered from torture or dismissing the hypothetical scenarios is not enough. We have seen how easily officials and elected leaders cave in when confronted with something like the ticking bomb argument and begin to see torture as a necessary, if regrettable, price to pay. It is likely to happen again and again unless people in authority and those who shape our culture are restrained by something more powerful than merely weighing the efficacy of interrogation techniques.

Professor Waldron argues that secular societies need to restore taboos which have been lost or disregarded. Prominent among this is a deeper understanding of human dignity. We must begin to see the individual human being as sacred, so that any violation is seen as sacrilegious. We must even be prepared to say that security won by torture (even if such a thing could ever be proved) is not worth having.

For by succumbing to it—even for noble reasons—we let the demonic into our society. We have surrendered voluntarily one of the things terrorism seeks to destroy—the civilised norms which govern life, which existed even the murkiness of armed conflict. ‘Terrorism involves the same instrumentalisation of terror that torture involves,’ says Waldron, ‘…Partly by understanding what is wrong with torture we can understand what is wrong with terrorism.’

Resisting torture because it is illegal or inefficient is not enough. We need to ask more searching questions about the effect it has on our way of life. The price to pay, in short, is too high. Which brings us to liberty. What can the torture debate tell us about civil liberties?

Too often the justification for eroding our civil liberties is that certain sacrifices—such as long periods of pre-trial detention, regulating free speech or extending the reach of surveillance—give us greater security. Rights and freedoms begin to sound like mere matters of convenience. As with the torture, issue we hear the same macho rhetoric that the rules of the games have changed. ‘The kaleidoscope has been shaken,’ said Tony Blair after 9/11. ‘The pieces are in flux.’

The public has been sold the line that a trade of liberty makes us safer. Ministers worry that they are presiding over a longer and slower version of the ticking bomb scenario: if there is another terrorist atrocity will we be blamed for not having done enough? There has been too much talk about the need to be seen to be tough. There has been legislative over-activity in the pursuit of absolute safety. There has been far too little about what liberty means to us as a society. It is to forget a much older truth: liberty and security are not things to be balanced—they are two sides of the same coin. Just as torture has made America less safe, the erosion of liberty in the UK has alienated many individuals and groups. It has made it harder to say what we stand for and what we are about. It has, in many different ways, polluted our politics and aspects of our daily life.

As Professor Waldron says: ‘Sometimes people think “something must be done”, even if it makes things worse, “we must respond” … It’s the beginning of wisdom to realise that sometimes all you can do is to avoid making things worse.’

Sometimes sacrifices are needed. But when the starting point is that certain liberties and laws are negotiable we are in trouble. Before we can have a mature discussion, we need to agree on what is fundamental to us a society. This has not happened. And so the chipping away at our liberties continues, not from any vision of tactical advantage or as a concerted plot against our rights, but because people in authority have detached themselves from a sense of principle. The sad thing about modern politics is that policies are adopted solely for utility’s sake. They purport to be ideologically neutral. There is little evident concern for the effects individual policies might have on individual liberty.

Those who feel strongly about the loss of liberty and the growth of authoritarianism should consider that they have an advantage over the present British government. And that is rallying a sense of history. Resisting new measures case by case plays into the utilitarian argument. Much better, surely, to change the rules of the game and counter government encroachment with something it is not used to: arguments drawn from history, principle and a wider view of what is best about our civilisation.

Interesting links:

Mark Danner, ‘US Torture: Voices from the Black Sites’, New York Review of Books, April 9th 2009, http://www.nybooks.com/articles/22530

Mark Danner, ‘The Red Cross Torture Report: What It Means’, NYRB, April 30th 2009, http://www.nybooks.com/articles/22614

Video Philippe Sands on ‘The Rumsfeld Memo and the Betrayal of American Values’, http://www.youtube.com/watch?v=KdPKtJIDRQs

Video: Jane Mayer, ‘How the War on Terror Turned into a War on American Values’, http://www.youtube.com/watch?v=J19uEOrO7go

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