John Yoo, who wrote the official memo justifying the use of torture, still thinks that there are situations when torture is acceptable. “Look, death is worse than torture, but everyone except pacifists thinks there are circumstances in which war is justified. War means killing people. If we are entitled to kill people, we must be entitled to injure them. I don’t see how it can be reasonable to have an absolute prohibition on torture when you don’t have an absolute prohibition on killing. Reasonable people will disagree about when torture is justified. But that, in some circumstances, it is justified seems to me to be just moral common sense. How could it be better that 10,000 or 50,000 or a million people die than that one person be injured?”
I think that’s a serious question, and I’m not fully satisfied with any of the five answers that occur to me:
1) There is a very old tradition of granting rights to prisoners. In war, that tradition goes back at least to the days of chivalry and is often seen as a mark of honor. In criminal law, the tradition goes back to Magna Carta with its rights of habeas corpus, trial by jury, and so on. But a tradition, by itself, is not an argument. Maybe the distinction between prisoners and others was arbitrary, or maybe it is obsolete in an age of strategic bombing and weapons of mass destruction.
2) Arguably, since we have unlimited power over prisoners, there must be checks on our power. Those checks include due process for criminal suspects and the Geneva Convention for prisoners of war. But note that we also have unlimited power over the people who are sitting below the bomb bays of our airplanes. Certain restrictions govern who may be bombed, but these rules are much weaker than due process. In fact, we can usually assume when we drop bombs that non-combatants (and non-criminals) will be injured, maimed, and killed.
3) Perhaps being tortured or held indefinitely is a special nightmare, more fundamentally dehumanizing than being blown to bits. Then John Yoo’s premise is wrong; torturing one person is worse than killing ten. Perhaps–but I worry that our ability to imagine one person’s torture exceeds our capacity to imagine the clean and rapid deaths of hundreds or thousands of people. Even our own demise is hard to conceive. That means that we may make an arbitrary distinction between prisoners and people caught on a battlefield.
4) There is a set of workable institutions for safeguarding limited rights for prisoners. These include courts, judges, defense attorneys, writs, treaties, and the Red Cross. These institutions work because there is time, once someone has been captured, to go through procedures and call on neutral parties. We have no workable institutions for safeguarding the rights of people on the battlefield. There just isn’t a neutral judge who can be summoned to decide whether it is acceptable to open the bomb bays. That seems true enough, but we have to wonder whether our institutions are adequate and appropriate. Maybe if the English nobility had been worried about civilian casualties as well as their own fates in the king’s dungeons, they would have created institutions to protect rights on the battlefield (not merely in the courtroom).
5) We have a good reason to safeguard the rights of captives: our own government can take us prisoner. If we lose habeas corpus for suspected terrorists, we can lose it for ourselves. That is certainly a concern, but it doesn’t excuse acts of war on foreign lands that may cause individuals to suffer worse than they would under torture. A pacifist replies: War is never acceptable. But what about in 1940? Or 1861? Or 1776? If war is ever justified, then we will sometimes kill people. And if killing is worse than torturing, why should we ban the latter–especially if it proves an efficient means of preventing casualties?