Responses to The Debate on Torture

Henry Shue

A morally serious person does not pretend to an absolute objection to torture that he or she cannot support. Too much is at stake to indulge in extreme but indefensible positions that collapse under the weight of reality. Sanford Levinson is morally serious and intellectually honest and judges it necessary to offer a reluctant kind word for torture that might contribute to the avoidance of disaster. But torture falls beneath the minimal standards of civilization, and there are powerful reasons to protest any advance permission for such degrading actions. At most, we should consider retrospective forgiveness for someone so convinced that he confronted the rare exceptional case that he was willing to risk severe punishment if decent people were not later persuaded that he had been right. Formal exceptions invite widespread abuse, especially where a judicial system is under the degree of intimidation inflicted by the Bush administration since 9/11. How many U.S. judges have so far shown the wisdom and courage to resist less extreme assaults on civil and human rights?

An initial reason why the United States should never engage in torture is precedent. When I heard that U.S. military personnel bravely and professionally performing their duties in the U.S. and British invasion of Iraq had been captured, my first thought was, “I hope they are not tortured.” We have no guarantee that a precedent of refraining from torture will be followed by others, but we can be sure that a precedent of engaging in torture will be followed. “If the world’s superpower, with all its high technology weapons, cannot defend itself without using torture, how can incomparably weaker and poorer groups like us manage without torturing captured fighters who might provide valuable life-saving information?” Torture seems to be the ultimate in efficiency, the shortcut to end all shortcuts. It is difficult enough to resist when you would be the exception if you gave in. When you would simply be following the leader, the precedent is irresistible.

More frightening than the permissive power of precedent is that for the United States to use torture would undermine its logic in condemning terrorism. How could we condemn all terrorism while permitting some torture? Any sane defense of torture attempts to justify only the exceptional act in the extreme emergency. For some terrorists, extremity is not necessary; terror is a way of life, just as torture is a way of life for some torturers, and it is easy to explain why neither terrorism nor torture should be a way of life. But what about “selective terrorists” for whom this cause is noble, this situation desperate, and this possible pay-off enormous? If those circumstances justify “selective torture” (by th...