Torture and the law I Notes for April 28

Main points

Both Dershowitz and Bowden take it for granted that societies will, and should, use coercive interrogation tactics and even torture in at least some cases. They disagree about whether this should be legal.

Dershowitz thinks it’s important to acknowledge and monitor what the government is doing. Bowden thinks a narrow legal permission to torture will be abused and that the best way to prevent abuse is to keep torture illegal. When torture is truly necessary, he thinks, officials should count on the law not being enforced.

Roslyn’s objections

Roslyn had two questions about Dershowitz’s torture warrant idea.

  1. How would a warrant system work in a genuine “ticking time bomb” case?
  2. How could the interrogators rely on the information they get from using torture?

They’re both good questions. Perhaps the first problem could be addressed with advance planning as (I think) Alex suggested. As for the second, I suppose it makes clear why torture genuinely has to be a last resort, when all other options have failed. When that’s so, there’s nothing to lose even if the information is false.

Of course, as the other Alex pointed out, we shouldn’t assume that there are no risks to acting on false information. The case for allowing torture is usually built on a stylized kind of example: we’re out of options, catastrophe looms, there is no significant cost to acting on false information, and so on. That could be true in specific cases. But, as we have very good reason to believe, it’s not true in general. So we have to weigh the costs of acting on bad information against the benefits of having good information when the practice is used in many different cases.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2010. It was posted April 28, 2010.
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