Is Torture Ever Justified?

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Some discussions of the “torture question” suggest – or simply declare – that torture is never justifiable in part because it is an unreliable source of information. In my view, such claims need to be “unpacked” a bit, and are not quite obviously true enough to allow us to skirt the ethical challenges presented by this quest

It certainly seems likely that “torture” can be an unreliable source of information. The question is whether it is necessarily so. To be sure, asking a prisoner leading questions – making clear that a particular response is desired and that if this response is given, the abuse will stop – is presumably a highly unreliable way to get to the actual truth.   Enough people would agree to anything under such circumstances that an interrogator probably could not rely much upon the results. From this perspective, torture would seem a particularly unhelpful way to approach criminal justice matters: one might obtain lots of confessions, but they would be essentially worthless as indicators of the suspects’ actual responsibility. The problem in such “confession” scenarios is that torture may well decrease , rather than increase, the likelihood of truthfulness.

But what if the interrogator asked only carefully-phrased open-ended questions about matters potentially subject to empirical verification? A terrorist suspect simply asked about how decision-making works within his organization, for instance, would not so easily know what information would satisfy his torturers. Moreover, he would seem to have little incentive to say just anything , because details that did not pan out when measured against other prisoners’ stories or other evidence could result in the prolongation or intensification, rather than the cessation, of his mistreatment. It might still be that the prisoner would lie, of course, but the use of harsh techniques might plausibly increase the likelihood of his truthfulness when compared to “normal” interrogations. In this sense, torture would seem to be more potentially useful in intelligence-gathering scenarios than in criminal justice cases.

The balance of interrogator incentives would also seem likely to be different in the two types of case. In the law enforcement arena, where success is generally measured by the obtaining of convictions after crimes have occurred, there might be some temptation to torture techniques – if they were available – notwithstanding their unreliability. In the intelligence arena, however, the confession of a terrorist has less intrinsic value (though surely not none ).   Instead, the focus of information-gathering is more upon forward-looking operational detail, upon discovering such things as the salient details of planned operations, or the identity and location of cell members. Where an unscrupulous prosecutor might find some value in a false confession, an intelligence interrogator has much less use for a fabricated response. (Indeed, a false answer in the intelligence context could lead to catastrophe, sending agents off on a wild goose chase and leaving the real plan for the next terrorist attack to proceed uninterrupted.) The odds that an intelligence officer would seek to employ carefully-structured questioning designed to minimize the chance of false, “say anything” answers would thus seem to be higher than in the case of a prosecutor.

All this is not to say that torture is a reliable source of information. I am happy not to be any sort of authority on the subject, and hope there are very few people alive who could claim to be. My point is merely that torture is not obviously unreliable enough that we can avoid struggling with the moral dilemmas presented by “ticking bomb”-type questions. If information obtained by the use of torture were always untrustworthy, things would certainly be easier. It is precisely because it is at least possible that torture might in some cases yield sound data, however, that we have no choice but to wrestle with the ethical dilemma.