18 May 2005


by Matt Rubinstein at 7:14 am

When people like Deakin University academics Mirko Bagaric and Julie Clarke make an argument for something so controversial as the legalisation of torture, it’s hard to know whether they’re being courageous or just looking for attention. Bagaric and Clarke argue:

Torture is permissible where the evidence suggests that it is the only means, due to the immediacy of the situation, to save the life of an innocent person. The reason that torture in such a case is defensible and necessary is because the justification manifests from the closest thing we have to an inviolable right: the right to self-defence, which of course extends to the defence of another. Given the choice between inflicting a relatively small level of harm on a wrongdoer and saving an innocent person, it is verging on moral indecency to prefer the interests of the wrongdoer.

In a cameo on Lateline last night, Bagaric explained the kind of torture that might be all right if necessary to obtain critical information only your torture victim can deliver:

MIRKO BAGARIC: If you can do something which causes intense, unbearable pain in the short-term but when you stop it has no long-term consequences, certainly in terms of physical consequences, that’s the type of activity you should, that’s certainly the type of activity you should start with.

Melbourne writer Jeff Sparrow offers a good counter-argument in The Age:

In the real world, torture rarely provides accurate information. As the US expert Douglas Johnson puts it: “Nearly every client at the Centre for Victims of Torture, when subjected to torture, confessed to a crime they did not commit, gave up extraneous information or supplied names of innocent friends or colleagues to their torturers.”

This was one of the more heated points raised in SBS’s Insight instalment in early April, which was all about torture and featured a mockup of the ticking-bomb scenario so beloved of torture advocates (complete with news-flashes from Anton Enus) and a torture clip from CSI (but which could easily have come from any other contemporary US drama, from 24 to The OC—I’d like to see that!). Former US Army interrogator Mike Ritz said:

I wish that people would recognise that torture is ineffective and I think we should spend more time educating people why it’s ineffective, so that people don’t go around supporting the idea. There’s a lot smarter ways to approach interrogating a prisoner.

That said, a lot of the techniques Ritz thought were more effective—sleep deprivation, “stress positions” and such—might be borderline torture anyway. But in a way that’s not really the point: the more fundamental argument is about whether torture would be acceptable if it were a demonstrably reliable means of obtaining information. We may never need to have that argument, since it doesn’t look like torture does anyone much good, but there’s nothing wrong with having it anyway. And of course the fundamental argument has been had many times before, by people who weren’t significantly stupider than we are: that’s why the prohibition is one of the most fundamental in international law. I think Raymond Gaita said one of the best things on Insight:

It’s not as though when the laws on torture were drafted, the international laws prohibiting it without exception that people were naive about these theoretical scenarios, a ticking-bomb here, God, when I was a philosophy student in the ’60s we were always talking about that, consequentialism versus something else. But now what’s happened, I mean after quite literally in a century after millions of people were murdered and tortured, there are people who insisted and who weren’t naive, that this is one crime against humanity whose prohibition should be exceptionless. We’re now arguing about this, not because we’re suddenly interested in moral philosophy or political philosophy, because what, 3,000-odd people get killed in America, 200 in Bali, fewer elsewhere. We’re arguing this now because we’re prepared to turn the clock backwards, turn the whole world upside down in a way, because we want to know how best to save our skins. And I think we ought to ask ourselves whether we’re not ashamed of that fact.

As Sparrow says, the Bagaric-Clarke argument is the crudest kind of utilitarianism. They posit a choice between the innocent victim and the tight-lipped villain, but for any utilitarian worth his or her salt that is not the relevant calculus. Even act-utilitarians have to consider the broader consequences of an action; and any shift towards a society in which people can be tortured is surely not an appealing consequence.

There’s always going to be a conflict between freedom and security. It’s clear that many or most of the human rights we choose to recognise increase the risk that we personally may be injured or killed on any given day. The rights afforded to suspected criminals undoubtedly result in some actual criminals going free and committing more crimes—but we still endorse the rights, not only because we may need them ourselves some day, but also because we want to live in a society that treats people with respect. That’s not “verging on moral indecency”; it’s considering the consequences of our actions and decisions beyond their immediate effect on ourselves.

It’s tough to ask an innocent person to die because we don’t want to torture someone else, but that’s what we all signed up for. We all take that risk. I’m sure I’d feel differently if it were me or anyone close to me at the wrong end of the ticking bomb or the fanatic’s Kalashnikov, I might well say torture the fuckers. But that wouldn’t be a moral position; it would be a selfish position, and, yes, I would be ashamed of it. I think that as citizens—when we vote, when we discuss possibilities in the abstract, when we do whatever we can to shape the place we live in—we have to think morally, precisely because we can’t necessarily trust ourselves when it comes to the crunch. And for most of us, that means no torture.

But it also means having the argument, so the death-threats and whatnot made against Bagaric and Clarke are outrageous and appalling. I don’t think they’ve made very good arguments, but they’ve certainly prompted some good arguments in response (and I don’t mean here), and it is something we have to keep reminding ourselves about, even questioning. So, unless they’ve done this entirely to draw attention to themselves: good on ’em.

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