The Free Life | Wendy McElroy
Libertarianism and Torture
The atavistic State at its worst.
The killing of Osama bin Laden has emboldened advocates of torture as an anti-terrorism technique because the operation was supposedly facilitated by intelligence gathered from “enhanced interrogation.”
From this, some advocates conclude that the waterboarding of suspects at, say, the U.S. prison at Guantánamo Bay, Cuba, is not a necessary evil but a good. A May 6 syndicated column by Linda Chavez was headlined, “Reward, Don’t Punish CIA Interrogators.”
To the Chavezes in this debate, the Gitmo torturers are heroes, willing to dirty their hands with the “front line” work on which American lives depend.
Libertarians need to take a hard stand against torture.
A Simple Issue
Torture is often presented in complex or legalistic terms that cloud the issue. Consider a current example.
Pakistan is holding three of bin Laden’s wives and several of his children for interrogation. That country’s government is notorious for torturing detainees, including women and children.
To the extent torture is discussed at all in connection with bin Laden’s family, the points raised would likely include:
Can Libertarians Ever Support Torture?
In fact, on occasion some libertarians have accepted torture as an acceptable method of gaining information. Reason commentator Radley Balko initially supported the torture of suspected terrorists. Balko later changed his mind on the grounds that “the government won’t use it competently…. [T]he government will abuse it, and … the government will find new, inappropriate contexts in which to use it.”
This is a rejection not of torture per se but rather of a refusal to cede that power to government. The anti-torture argument has to be stronger.
A useful starting point is to consider what conditions would have to be present for torture to be compatible with libertarian theory.
Libertarianism declares that no moral or practical consideration outweighs the right of a peaceful individual to use his own body and property. When rights are breached, the accused is entitled to due process before remedies can be justly imposed, and those remedies must be proportional to the violation.
I can imagine only one scenario that even approaches the conditions necessary to justify torture: if a convicted kidnapper is known to have information that could save the life of his victim – perhaps the address of where the victim is starving to death. It is permissible to use lethal force against an attacker who directly and immediately threatens your life or that of an innocent third party. If the slow starvation of a kidnap victim can be is viewed as an ongoing immediate threat, then it is possible that using the lesser violence of torture to end the threat might also be justified.
But other conditions apply as well. Torture could only be used against the direct aggressor – not his family, friends, or associates. It could only occur after the accused had been judged criminally responsible in a fair manner; otherwise, he would remain innocent until proven guilty.
As a practical matter, however, the time required for due process would almost certainly result in the hypothetical victim starving to death. And so even in the most favorable scenario possible, the libertarian conditions for torture contradict each other and the justification breaks down.
The Current Reality of Torture
Thinking about the conditions for “justified torture” remain valuable, however, to highlight how unjustifiable torture is in the current context.
Consider the detainees at Gitmo. None of the conditions that might conceivably justify torture are present. They pose no imminent or direct threat to the lives of others. Indeed, the detainees have not even been charged with a lethal crime; nor have they received due process or been adjudicated as criminally guilty of anything. At most, some of them may possess information that could prove useful to one side of a political conflict. (Even this vague claim is highly doubtful as information extracted by torture is notoriously unreliable.)
However interesting it is to debate theoretical cases, no libertarian could possibly justify the current reality of torture without compromising libertarian principle. The torture of detainees is not an act of self-defense. It is the atavistic State and human nature at their worst.
Ultimately, however, I oppose torture not because I am libertarian, but because I am a human being. Torture destroys everyone and everything decent it touches, including the torturer’s humanity.
From this, some advocates conclude that the waterboarding of suspects at, say, the U.S. prison at Guantánamo Bay, Cuba, is not a necessary evil but a good. A May 6 syndicated column by Linda Chavez was headlined, “Reward, Don’t Punish CIA Interrogators.”
To the Chavezes in this debate, the Gitmo torturers are heroes, willing to dirty their hands with the “front line” work on which American lives depend.
Libertarians need to take a hard stand against torture.
A Simple Issue
Torture is often presented in complex or legalistic terms that cloud the issue. Consider a current example.
Pakistan is holding three of bin Laden’s wives and several of his children for interrogation. That country’s government is notorious for torturing detainees, including women and children.
To the extent torture is discussed at all in connection with bin Laden’s family, the points raised would likely include:
At what age must a victim be before torture becomes acceptable?But these questions are technicalities that should be addressed only after the fundamental issue is resolved: namely, is torture to elicit information ever proper?
Are family members of targeted people also fair game?
Will resulting information be useful or utterly unreliable?
Can Libertarians Ever Support Torture?
In fact, on occasion some libertarians have accepted torture as an acceptable method of gaining information. Reason commentator Radley Balko initially supported the torture of suspected terrorists. Balko later changed his mind on the grounds that “the government won’t use it competently…. [T]he government will abuse it, and … the government will find new, inappropriate contexts in which to use it.”
This is a rejection not of torture per se but rather of a refusal to cede that power to government. The anti-torture argument has to be stronger.
A useful starting point is to consider what conditions would have to be present for torture to be compatible with libertarian theory.
Libertarianism declares that no moral or practical consideration outweighs the right of a peaceful individual to use his own body and property. When rights are breached, the accused is entitled to due process before remedies can be justly imposed, and those remedies must be proportional to the violation.
I can imagine only one scenario that even approaches the conditions necessary to justify torture: if a convicted kidnapper is known to have information that could save the life of his victim – perhaps the address of where the victim is starving to death. It is permissible to use lethal force against an attacker who directly and immediately threatens your life or that of an innocent third party. If the slow starvation of a kidnap victim can be is viewed as an ongoing immediate threat, then it is possible that using the lesser violence of torture to end the threat might also be justified.
But other conditions apply as well. Torture could only be used against the direct aggressor – not his family, friends, or associates. It could only occur after the accused had been judged criminally responsible in a fair manner; otherwise, he would remain innocent until proven guilty.
As a practical matter, however, the time required for due process would almost certainly result in the hypothetical victim starving to death. And so even in the most favorable scenario possible, the libertarian conditions for torture contradict each other and the justification breaks down.
The Current Reality of Torture
Thinking about the conditions for “justified torture” remain valuable, however, to highlight how unjustifiable torture is in the current context.
Consider the detainees at Gitmo. None of the conditions that might conceivably justify torture are present. They pose no imminent or direct threat to the lives of others. Indeed, the detainees have not even been charged with a lethal crime; nor have they received due process or been adjudicated as criminally guilty of anything. At most, some of them may possess information that could prove useful to one side of a political conflict. (Even this vague claim is highly doubtful as information extracted by torture is notoriously unreliable.)
However interesting it is to debate theoretical cases, no libertarian could possibly justify the current reality of torture without compromising libertarian principle. The torture of detainees is not an act of self-defense. It is the atavistic State and human nature at their worst.
Ultimately, however, I oppose torture not because I am libertarian, but because I am a human being. Torture destroys everyone and everything decent it touches, including the torturer’s humanity.
In addition, I think the argument that water-boarding, or sleep deprivation, is torture in the same sense that gouging out an eye, or crushing a testicle is torture is subject to question.
I do think I object in one aspect, though. Those politicians in power who have authorized torture, after having been found guilty of violating international law and the Constitution should have to under go torture of the like they advocated. Specifically, I fantasize of the waterboarding of Cheney. Unfortunately, He would probably die of a heart attack before things got too unpleasant for him. Have I lost my humanity?
These arguments are always valid unless done in self defense – to protect one’s own life (or the lives of others). Just like you say, the self defense principle applies directly and not indirectly – one cannot claim self defense before an act of violence has even taken place. To run around killing or assaulting people in “proactive self defense” is preposterous, and to do so through a proxy is even worse (it is preposterous cowardice).
The rejection of torture becomes even clearer if one, like me, does not believe in a “right” to self defense in the sense of the defending person somehow being exempted from guilt. I do not think anybody ever has the “right” to do harm on/to another person, but that there are situations where such actions may be deemed necessary. In such situations, one can claim necessity as well as defense as mitigating circumstances. Since the violent actions were taken against the aggressor himself (as you also note), you would be guilty of harm only to the degree you have used excessive force.
Harm is not ever lawful in my mind, and in a conflict between two persons what remains to be penalized through restitution (aggression counted as more severe than defense) is “net harm.” In the case of the hired torturers and “prisoners” at Gitmo, it is very clear who is the aggressor.
Norm: yes, I would argue that torture is a more egregious violation of rights than killing even though I acknowledge that torture may be more socially taboo in some societies. One of the points upon which I base my conclusion is that it is possible to provide restitution in some form to a torture victim whereas nothing can be given to the dead.
Ken: I am with you *in spirit* re: the SOBs who sign the papers and make the ‘noble’ speeches that “authorize” the inflict of agony on defenseless people.
Per: You are correct about the case against torture being simpler than I presented. My purpose was to attempt to construct a scenario in which torture could be justified in a libertarian framework; this is a different goal than arguing against torture….but it brought me to the same destination, only by a more circuitous route.
MNB: thanks for the *respectful* disagreement. I may (and do) *feel* the same way as you do toward some of the people targeted as terrorists or suspects or enemy combatants — you pick the term. But I always, always care about preserving the principles — such as due process — that have allowed for as much freedom and justice as there is in the world. If you start throwing people into pits to rot without habeas corpus, due process, the right of appeal, the requirement of charges…then there can be no justice whatsoever. Because what is done to them today will be done to your children tomorrow. Unless, of course, your (grown) children are the ones holding the guns and not giving a damn about human rights. Neither fate is one to wish on anyone.
Moreover, history has shown time and time again that “Utilitarianism” can and has been used to `justify’ virtually every form of oppression atrocity. (For example, the Roman Imperials justified crucifixion as an “effective deterrent” against treason and slave rebellion — but few today would consider their argument a valid one for re-instituting public crucifixions.) If one uses “Utilitarianism” as one’s sole guide, one is traveling down the road to the Soviet Gulags and worse.
@MNB — You neglect to mention that most of those dozen-plus journalists have concluded that waterboarding IS torture after having personally experienced being waterboarded themselves — most notably Christopher Hitchens, who changed his mind from supporting to strongly opposing waterboarding because he found that it was indeed torturous after experiencing less than 3 minutes of being waterboarded. (More to the point, I do not see you volunteering to be waterboarded to prove your point. Are you prepared to put your own body on the line to prove or disprove your claims?)
I understand your point about my addressing only torture but it is a bit unreasonable to require a more comprehensive treatment within an 800 limit. As it is, I went over my word limit…and, even then, I didn’t say 1/2 of what I wanted to about the torture of detainees…which *was* the subject.
BTW, I applaud your not voting libertarian. To my thinking, you shouldn’t vote anything at all.
2) If torture has been in nations’ defensive play-book long before ‘the war on terror’, we already lost our ‘humanity’ many thousands of years ago.
3) People like you are the reason I had to sit in time-out during recess in grade school along with the rest of my entire class, all because one disruptive child could not be disciplined.
4) What about my ‘rights’ to not be blown to bits by a suicidal maniac strapped with explosives? Shouldn’t you take your patronizing, arm-chair moralist rhetoric to the audience that needs it most?
To demonstrate that waterboarding of known murderous conspirators was a necessary evil, one need only ask, “Should we have just killed these profoundly evil people instead?” Surely they deserved death, or if not death something very close to it. Waterboarding is probably close to death and therefore an appropriate treatment. As far I am able to determine, all those operatives are still alive.
Finally, of course, to equilibrate waterboarding to more traditional and ancient methods of torture is a gross error on its face. There is relatively no pain because there is no tissue damage.
I am a dyed-in-the-wool conservative and I worry about my libertarian friends frequent muddying of the waters of pure conservatism with their often “over-the-top” dialogues.
Warmonger…if you are reading the column, then I think I am taking my “rhetoric to the audience that needs it most.” As to the rest of your comments…I don’t rise to bait but I do engage in civil discourse.
Jackson…even if I agree with you on waterboarding torturing “known murderous conspirators” (which, clearly, I do not), I would insist that anyone subjected to such a process be adjudicated as guilty of crime in an open court with due process. As a conservative, I am presuming you embrace the natural rights spelled out in the Constitution and that you believe them to be human rights (God-given, if you will). Otherwise, anyone labeled as ‘evil’ by an authority or a majority or whatever could be shot on the spot without trial. That’s not an America I’d want to live in or bequeath.
http://www.nationalreview.com/corner/180923/sorry-paul-begala-youre-still-wrong/mark-hemingway
Having said all that I admire & agree with the vast majority of the work you’ve written over the years (esp in Reason magazine). Thanks for the interesting & civil debate but I need to get back to work
American torture is just as bad as Nazi torture. Once you start your on a down hill slope. Soon we’ll have police torture, then school torture and on and on.
Stopping American aggression in Afghanistan would go a long way.
Mr. Swalwell talks about Man’s inhumanity to Man as if US prisons are the ultimate example of this.
I offer Mr. Phillip Craig Garrido who has pled guilty to kidnapping an 11-year-old child 18 years ago, repeatedly raping her, and forcing her to carry two children to term.
I’d hate to be accused of advocating torture so can we at least hit him on the knuckles with a ruler or is that too violent for Mr. Bylund and Ms. McElroy? How about sending him to bed without supper? We certainly can’t send him to prison for the rest of his life where he gets free health care, food, and Cable TV. That would be inhumane.
Maybe we should protest the Dugard family as heartless Statists for wanting to see this man put away? He’s only raped two children that we know of. Who is to say he’ll do it a third time?
When you violate someone else’s “Life, Liberty, and Property” you forfeit these same rights.
Yet more evidence that absolutist philosophy never survives an encounter with the harsh light of reality that is Man.
Yet more evidence that uninformed muddled thinking never survives an encounter with the harsh light of reality that is The Man.