I’d like to believe that torture doesn’t work. If torture didn’t work, that’d be sufficient reason to forbid it; sufficient but not necessary. Torture is malum in se; it’s illegal—and should be—not because it’s ineffective but because it’s wrong. My opposition to torture is a matter of honor. It doesn’t matter to me whether it works or not; we—Americans—shouldn’t do it.
I don’t give much credence to the torture memos’ accounts of what CIA said about “enhanced interrogation” (which includes non-torture as well as torture methods) preventing an attack. But I’m sure there are occasions when torture works. Torture someone 83 or 183 times, and he’s bound to tell you everything you want to hear; some of what he tells you will be the truth and of “high value”. That doesn’t mean we should license our government to torture.
When conduct is generally criminal, but a specific instance of that conduct serves some societal purpose, we say that that instance is justified. For example, murder is illegal (because it’s wrong). But the use of deadly force (including murder) can be justified by (among other things) self–defense, defense of a third person, and defense of property. Most murder trials in Texas, as a matter of fact, are not about whether one person intentionally killed another, but about whether the murder was justified. If a murder was necessary, that is a defense to prosecution; the murderer is not criminally responsible.
Here’s Texas’s law on necessity, from Penal Code Section 9.22:
Conduct is justified if:
(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;
(2) the desirability and urgency of avoiding the harm clearly outweigh,
according to ordinary standards of reasonableness, the harm sought to
be prevented by the law proscribing the conduct; and
(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.
Federal law is a little less legalistic. A defendant claiming justification must show:
(1) that he was faced with a choice of evils and chose the lesser evil; (2) that he acted to prevent imminent harm; (3) that he reasonably anticipated a causal relation between his conduct and the harm to be avoided; and (4) that there were no other legal alternatives to violating the law.
I can see a scenario in which the torture of Abu Zubaydah might have been either necessary or justified: if the torturer acted to prevent imminent harm (“the ticking bomb”) with no other legal alternatives.
Call it the Jack Bauer scenario. If Jack Bauer can show that torture was the least of the available evils, he shouldn’t be convicted. But that’s for him to prove. This puts the torture memos in new light, incidentally. “Imminent” harm isn’t harm that’s going to happen sometime after you seek legal advice. Also, Bauer might have a justification defense even while Bybee and Pelosi, sitting in their offices in DC, do not; that might change my thinking about prosecuting them all.
Why not give Bauer free rein? Because there’s substantial societal benefit in requiring someone who’s choosing among evils to be at some risk for choosing badly. The greater the danger of choosing badly, the more careful Bauer will be to choose correctly.
That some murders are justified doesn’t lead us to countenance all murders; in the same way, that torture might sometimes be justified shouldn’t entice us to give our government carte blanche to torture. Morally repugnant conduct doesn’t become any less repugnant because it’s necessary, and the lesser of two evils is still evil.