A TORTUROUS WASTE OF TIME: Apparently, banning torture — even in one’s constitution — doesn’t do much to reduce the incidence of torture. A recent study conducted by a couple of law professors concludes that they “do not find any evidence that constitutional torture prohibitions have reduced rates of torture in a statistically significant or substantively meaningful way.” The authors find that 84% of national constitutions prohibit torture, and yet “countries without constitutional torture bans have actually engaged in less torture” over the 1990-2010 time period studied.
The definition of “torture” itself is highly subjective. The UN Convention on Torture, for example, defines it as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person”. But putting that definitional problem aside, torture may well work in some situations, yielding information that could not otherwise be obtained. Robert Jervis, examining the Senate Intelligence Committee’s controversial report on the CIA’s interrogation program, put it this way in the latest issue of Foreign Affairs:
In judging the torture’s effectiveness, the majority report looks for direct connections between the intelligence derived from the torture and its benefits to national security. But the minority and CIA rebuttals are right to urge a broader view. For one thing, analysts needed a great deal of information about al Qaeda before they could make sense of any one source. By the majority report’s standard, the torture was not effective if it merely contributed to a general understanding of al Qaeda, rather than leading directly to the foiling of a terrorist plot or the capture of an al Qaeda member. Yet crucial insights often result from indirect links. It might have been, as the majority report argues, that breaks in many cases came from prisoner interrogations that did not involve torture. But in some cases, interrogators asked those detainees questions because of intelligence that came from others who were tortured. And although the majority report lends little weight to information that simply confirmed other intelligence, such findings can prove invaluable, since tips from individual sources are rarely sufficient to merit action on their own. In essence, the report and the rebuttals talk past each other on this point: the Democrats dismiss evidence of a type that the Republicans and the CIA (rightfully) consider central.
This past week, Amnesty Intenational issued a new report, complaining that the Obama Administration has “done nothing” after the Senate Intelligence Committee’s report, and urging DOJ to prosecute CIA and other U.S. officials involved.
Even if one agrees that what the CIA did, post 9/11 was “torture,” the truth remains that in some situations, the risk of not using such techniques may well exceed societal benefits of refraining from their use. As liberal law professor Alan Dershowitz has put it, “No President would want to be responsible for the deaths of thousands of innocent citizens if he could have prevented these deaths by authorizing the use of nonlethal torture against a guilty terrorist.”
Indeed, there is a logical reason why constitutional prohibitions on torture don’t reduce its use: We may ban torture, to make ourselves “feel” better. But given its amorphous definition and potential to save thousands of innocent lives, it will continue to be used in extraordinary situations. So there is a legitimate question as to whether it is desirable, from the perspective of the rule of law, to ban something society knows (and indeed expects) will be disregarded in the most difficult situations. And polls show Americans overwhelming believe torture is appropriate in such situations.