Saturday, January 9, 2010

Torture, Morality, and the Law

58% of Americans favor waterboarding the Christmas plane bomber. Presumably even more simply found it unproductive in this case since he was cooperative and not a ticking bomb after he was caught, but would favor it in other situations.

It's commonly argued that since some torture is morally justified, some torture should be legal.

The unstated premise in this argument is that all moral things should be legal, or at least this moral thing.

I disagree with the hidden premise.

The government will use torture in some circumstances whether it is legal or not, particularly in extreme scenarios like those proffered by torture's advocates.

In such cases, many agents would still torture out of self sacrifice despite legal repercussions to themselves. In addition, they would likely not be caught. Historically, the CIA has commonly acted illegally to defend perceived national interests, and agents relied on a sympathetic agency to cover up for them. The CIA's problem has generally not been timidity or respect for apparently immoral laws. Furthermore, Americans support torture. In this environment, it would be impossible to prosecute its practitioners if they had every reason to think it was necessary, even if caught. Even if they were convicted, there would be tremendous pressure to pardon them.

The main consequences of legalizing torture would be encouraging its use when it shouldn't be used, hurting America's prestige, and ameliorating the conditions of suspects who are currently sent to Jordan and elsewhere to be tortured because of America's total prohibition.

America's level of support for torture is not extrinsic to whether or not it should be legal. Ironically, the more support it has, the less it should be legal.

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