Sacred Violence: Torture, Terror, and Sovereignty

3. The Current Debate: Torture in the War on Terror

Three THE CURRENT DEBATE: TORTURE IN THE WAR ON TERROR those who are willing to consider the use of torture today portray it as an investigative technique to be used in the war on terror. More narrowly still, torture’s justi‹cation lies in the prevention of injury.1 It is not to be a technique to investigate past crimes, nor is it to be a form of punishment. Rather, they claim that torture can be used to prevent terrorist acts that are about to occur: the “ticking time bomb.” The debate generated by this hypothetical is really two debates—one moral and one legal. “Is torture always morally prohibited?” is not quite the same question as “Should it ever be legally permitted?” Separating the two debates is a useful starting point to see the way in which the consequentialist and nonconsequentialist arguments compete with each other. What is most interesting about the debate, however, is the way in which both arguments point to a set of practices and beliefs that is beyond the discursive capacities of the disputants. In both cases, we are left with a sense that torture resists the categories of the ordinary, whether of morality or law. We need to ‹nd a way to speak of the extraordinary domain in which torture and terror are at home. This is the domain of sovereignty beyond law. 70 The Moral Debate Why not torture someone as a means to the end of preventing the explosion of a ticking time bomb that would otherwise kill many? This hypothetical scenario is a perfect test of one’s torture sensibilities because it is always possible to raise the number of projected deaths. Would you torture to save ten innocents? If not ten, how about a hundred? A thousand ? A hundred thousand or a million? How about the entire nation, the West, the globe? The moral absolutist will, somewhere in this endless escalation, meet his or her match.2 The point of the hypothetical is to test the claim that we are all consequentialists in the end. It is just a matter of where one’s personal sensibilities give way to the logic of numbers. If this con›ict between moral frameworks were all that is at issue, the contemporary torture debate would still have the merit of introducing into our public discourse the problem that has always been at the center of ethics classes. How do we reconcile the two great Western traditions of deontological and utilitarian ethics?3 There is nothing special about torture from this perspective. Kant, for example, wrestled with the same problem in the context of his claim that morality requires an absolute prohibition on lying. How, he wondered, could he maintain that principle in the face of the terrible things that one can imagine following from telling a particular truth? Not many of his readers have been convinced by his Herculean efforts to stick to principle even when it means turning in one’s friends to unjust authorities.4 Does one tell the truth when the Gestapo asks about Jews hiding in the attic? If Kant refused to take one step down the slippery slope of compromise with principle, his successors have been quick to point out how quickly we can slide down that slope once we take the ‹rst step. If lives saved is the currency of morality, why should we not be willing to cannibalize one person’s body parts to save many? Are we willing to punish an innocent person in order to deter many from some harmful act? How many innocents are we willing to mistakenly torture for the sake of a possibility that there might be a ticking time bomb?5 The ticking bomb example may seem an easy case since the terrorist does not evoke much sympathy, but how is the argument different in principle? How can we know ex ante that we even have hold of a terrorist or that there THE CURRENT DEBATE 71 really is a bomb out there? Isn’t our commitment to moral principle most tested—and most important—when it demands action contrary to our sympathies? A just legal system, for example, does not ask whether the accused is a good man; it asks whether the government can prove that he committed the offense. Neither side in these debates has a monopoly on the language of morality. Bodily well-being—including the...