The Torture Memo - Take 2

Glenn Reynolds has a post about the "torture memo" and it's meaning (which I discussed here as well). I sent an email to him, but since his volume is too high for there to be much likelihood of it getting out otherwise, here is the email:

You note:

I find it hard to respond to these things in terms of cost-benefit. My law school mentor Charles Black once said that of course you can come up with scenarios -- the classic ticking-nuclear-bomb example -- where torture might be justified. And you can be sure that, in those cases, if people think it'll work they'll use it no matter what the rules are. But there's a real value to pretending that there's an absolute rule against it even if we know people will break it in extraordinary circumstances, because it ensures that people won't mistake an ordinary remedy for an extraordinary one.

It seems to me that it is clear that there are moral cases where the doctrine of least harm compels the use of torture. The ticking nuclear bomb scenario is one, but let's take a more personal one:

If my wife were kidnapped, and I had in my possession someone whom I absolutely knew to have the information of where she was held, I would not stop to consider whether or not to torture the person. I would ask the question once, then cut off a finger, then ask again, and so forth. I would be perfectly willing to face the legal and moral consequences of that action in order to save my wife. Note that I don't at assume that I know something bad will happen or is happening - she might just be released unharmed. But since I don't know, and since her well-being is worth more than my freedom or even my life, I would not hesitate.

The same applies, I think, in the case of a ticking nuclear bomb. I would hope that the government agents charged with such a task would torture the person who knows, if necessary to prevent the detonation, then present themselves for trial. Sometimes the right thing to do is to break the law and accept the consequences.

You also say:

I also think that the rather transparent effort to use this against Bush -- often by people who think nothing of cozying up to the likes of Castro, for whom torture and murder are essential tools of governance -- has caused the Abu Ghraib issue to be taken less seriously than perhaps it ought to be.

There is a possibility I haven't seen discussed much: what if there were more than one memo?

Say that Secretary Rumsfeld were to ask Undersecretary Smith to write a memo justifying the use of torture just because we feel like it, Undersecretary Jones to write a memo explaining why even looking unhappy in the presence of a prisoner is unConsitutional regardless of circumstance, and other undersecretaries were asked to write intermediate position papers. Now, we don't know what policy was adopted, nor what other memos may have been written, so how can we conclude from the existence of this memo that in fact it represents ANYTHING about government policy?

Posted by Jeff at June 15, 2004 05:50 PM | Link Cosmos