Legalise torture? It’s tortured logic

Director Kathryn Bigelow's Zero Dark Thirty (2013) starred Jessica Chastain as Maya, a tough, brilliant and single-minded CIA agent who is prepared to use torture in the interrogation of suspected terrorists. There was nothing sadistic about Maya's character, and she comes to doubt the efficacy of torture, although in the end she is able to learn the whereabouts of Osama bin Laden – which she could not have learned, the film suggests, had she been unwilling to employ "enhanced interrogation techniques." This assertion, that the use of torture did in fact produce useful intelligence that helped lead the U.S. to bin Laden sparked debate as well as outrage.

The Report (2019) is, among other things, writer-director Scott Z Burns' answer to Zero Dark Thirty. It is largely about another single-minded individual, Daniel J. Jones (Adam Driver), who was lead investigator of the U.S. Senate Intelligence Committee and who spent five arduous years doggedly uncovering the CIA's suspect detention and interrogation program following the 9/11 terrorist attacks. His investigation eventually culminated in a 6,700-page report that is a damning exposé of the CIA's methods of "enhanced interrogation" and the psychologists who helped design them – methods which included walling, cramped confinement, stress positions, waterboarding, the use of insects, and mock burial. This was despite Jones himself having no interrogation experience. Like Jones, the film is unwavering not only in its moral condemnation of torture, but in its claim that torture is not effective and never produces real, actionable intelligence.

Torture is admittedly an extremely difficult issue to confront. It is so morally reprehensible that we are understandably reluctant to even consider the possibility that it could ever be justified, under any circumstances. The problem is that the world is a messy place – it isn't morally tidy – and sometimes the right thing to do is not available to us. According to the American Field Manual, the rulebook of military interrogators, "The use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts and can induce the source to say whatever he thinks the interrogator wants to hear." However, if we are to deal honestly with this issue, we must recognise the fact that there is substantial evidence that sometimes torture is effective in eliciting information and, indeed, it has been known to save innocent lives.

In Why Terrorism Works (2002), Alan Dershowitz writes, "There can be no doubt that torture sometimes works. Jordan apparently broke the notorious terrorist of the 1980s, Abu Nidal, by threatening his mother. Philippines police reportedly helped crack the 1993 World Trade Center bombings by torturing a suspect." If, in certain dire situations, something like nonlethal torture may be justifiable, then it appears we should at least consider Dershowitz's suggestion that if and when torture is practiced, that it be done in accordance with the law and with some kind of warrant issued by a judge.

"I'm not in favor of torture," Dershowitz writes, "but if you're going to have it, it should damn well have court approval." His claim is that if we are, in fact, going to torture then it ought to be done in accordance with law: for tolerating torture while pronouncing it illegal is hypocritical. In other words, democratic liberalism ought to own up to its own activities, according to Dershowitz. If torture is, indeed, a reality then it should be done with accountability.

There are, however, significant problems with the reasoning behind torture-warrants. For one, the legalization of torture would significantly distort our moral experience of the world, corroding the very notion of law itself, which does not rule through abject terror: the law is, after all, meant to replace sheer brutality as a way of getting people to do things. Indeed, the rule against torture is paradigmatic of what we mean by law itself. In short, to have torture as law undermines what we take the very rule of law to signify.

Such considerations are closely connected with the following concern, addressed in The Report, namely, what are the consequences of institutionalising torture? Institutionalising is clearly what the introduction of torture-warrants would imply – and once you institutionalise torture you then have to elaborate on all aspects of the practice, including the training not only of would-be torturers but also of medical personnel. In other words, the legalisation of interrogational torture would apparently require the professionalisation of torture; that is, the acceptance of torture as a profession.

This normalization is especially disquieting when we stop to consider in particular the role of doctors and medical professionals in torture: for nothing is more antagonistic to what we mean by medicine than its utilisation in the prolongation of a person's agony and brutalisation. Sadly, the participation in torture of medical practitioners is nothing new, and we medical practitioners would do well to remind ourselves of that history, for we are now most certainly part of it.

In his book Torture, Edward Peters observes that it was under the Third Reich that torture was "transformed into a medical specialty, a transformation which was to have great consequences in the second half of the twentieth century." Medical involvement in torture first came to world attention with the disclosure of practices in Nazi concentration camps. The Nuremberg trials revealed that physicians had, for example, placed prisoners in low-pressure tanks simulating high altitude, immersed them in near-freezing water, and had them injected with live typhus organisms.

It is likely that hundreds of doctors and nurses participated in these experiments, although only 21 German physicians were charged with medical crimes. What needs to be emphasized is a point that Robert Jay Lifton, M.D. makes with what he calls an "atrocity-producing situation" – by which he refers to an environment "so structured, psychologically and militarily, that ordinary people can readily engage in atrocities." As Lifton observes, many Nazi doctors were engaged not in cruel medical experiments, but directly involved in killing. To get to that point, however, they had to undergo a process of socialization; first to the medical profession, then to the military, and finally to the concentration camps: "The great majority of these doctors were ordinary people who had killed no one before joining murderous Nazi institutions. They were corruptible and certainly responsible for what they did, but they became murderers mainly in atrocity-producing settings."

Referring to the CIA programdescribed inThe Report, Atul Gawande, a surgeon and author, observed that "The torture could not proceed without medical supervision. The medical profession was deeply embedded in this inhumanity." In fact, the program was developed by two psychologists, Jim Mitchell and Bruce Jessen, who – as the film relates – based their recommendations on the theory of "learned helplessness," which essentially describes a condition in which an individual repeatedly subjected to negative, painful stimuli comes to view their situation as beyond their control and themselves as powerless to effect any change. The crucial point is that medical professionals were an integral part of the program. Referring to American doctors that were involved in the torture at Abu Ghraib, Robert Lifton points out, "Even without directly participating in the abuse, doctors may have become socialised to an environment of torture and by virtue of their medical authority helped sustain it."

We can hardly underestimate the significance of the process of socialisation in facilitating participation in torture. Certain factors are decisive in terms of weakening the moral restraints against performing acts that individuals would normally find unacceptable. Following Herbert Kelman, a Harvard University professor of social ethics, we can identify three forces that are particularly important. Kelman was particularly interested in what he described as "sanctioned massacres" – such as occurred at My Lai during the Vietnam War – but his observations are relevant to the torture setting as well.

The first factor is authorisation: rather than recognising oneself as an independent moral agent, the individual feels that they are participating in a mission that relinquishes them of the responsibility to make their own moral choices. The presence of medical professionals helps to lend a sense of legitimacy to the enterprise.

Routinisation is another factor, and one which speaks directly to the establishment of torture as a profession. The torturer perceives the process not as the brutal treatment of another human being but simply as the routine application of a set of specialized skills; or as Kelman puts it, "a series of discrete steps most of them carried out in automatic, regularised fashion."

Finally, dehumanisation, whereby the victim is deprived of identity and systematically excluded from the moral community to which the torturer belongs: it becomes unnecessary for the agents to regard their relationship to the victim as ethically significant – in short the victim is denied any inherent worth and therefore any moral consideration.

Medical personnel who act as advisors, as it were, on torture techniques are directly implicated in the practice of torture. But if we were to follow Dershowitz's suggestion and effectively institutionalise torture, this medical involvement would be an inevitable result – for it was present already when torture was being practiced clandestinely. It seems strange that Dershowitz, who finds the current hypocrisy so outrageous, would attempt to remedy the situation not by eliminating the hypocrisy but rather legitimising it. For what could be more hypocritical than doctors, who have sworn to do no harm, taking a more or less active role in the systematic and scientific brutalisation of other human beings? But such would be the unavoidable outcome of legalising torture through "torture-warrants."

In closing, institutionalising torture would have very bad consequences – far worse than the hypocrisy that so troubles Dershowitz. Not only would the practice of torture likely metastasise – instead of being limited to one-off cases – its professionalisation would contribute to the formation of "atrocity-producing situations," and we have seen how this relates in particular to the complicity of doctors in the torture situation. Physicians, nurses and the medical establishment itself would be severely ethically compromised by the institutionalisation of torture. All of which is to say that the legalisation of torture should be avoided. Best to then uphold the absolute ban on torture, even if that ban will be subject to violation under extraordinary circumstances.