Justifying torture

Am I alone in struggling to understand this?:

Lord Carlile, a QC and Liberal Democrat peer appointed by the government to review its anti terrorism legislation, said he felt the use of evidence possibly obtained by torture should be "proportional and not fixed".
That meant material relating to major crimes, rather than lower level ones, may be considered.
"The bottom line is that the UK must be committed against torture," he told BBC Radio 4's Today programme.
"I don't think it is hypocritical to take action which is likely to have the effect of saving possibly dozens or hundreds of lives," he said.
"One cannot have a total exclusionary rule.
"What one must have, however, is the highest of standards to ensure that the British authorities are never complicit in torture."

This strikes me as incoherent. If it is permissible to use evidence obtained by torture in some circumstances, how can it be impermissible for the British authorities to ever be complicit in torture?
What Carlile seems to be saying is that there are some jobs too dirty for the British to do, but which can legitimately be done by lesser breeds. How can this be?
It seems to me that there are two coherent views on torture. One - well expressed here - is that it is always wrong (FWIW, I agree). The other, hinted at by the phrase "proportional and not fixed" is the utilitarian one that it's sometimes right on cost-benefit grounds.
But if it is right in cost-benefit terms for (say) an Egyptian to torture a suspected terrorist, how can it be wrong for an Englishman to do so? Utilitarianism applies to acts, regardless of the nationality of the agent.
What am I missing here?

Comments

[Paddy Carter]

If it is permissible to use evidence obtained by torture in some circumstances, how can it be impermissible for the British authorities to ever be complicit in torture?

yes, it's a bit like saying "Normally I'm vegetarian, but seeing as it's already dead ... yum yum."

The obvious question, though, is what would you do if you were handed a piece of paper saying: "A lorry will be driven into the market on Saturday and blown up" - and you knew it was obtained by torture?

Do you think the question is misleading because situations like that just do not arise in the real world?

What positions are coherent? That if you are always and everywhere opposed to torture then you must refuse to use information obtained by others under torture, even if it cost lives. And that if you would use information obtained by others under torture in some circumstances, then you ought to be prepared to do the torturing yourself? Are those the only options?

[Jarndyce]

_if you are always and everywhere opposed to torture then you must refuse to use information obtained by others under torture, even if it cost lives_

Surely there's a difference, though, between using that information if it falls in your lap (e.g. upping surveillance on your hypothetical marketplace), and using it as legal grounds for, say, locking someone up for 10 years?

_if you would use information obtained by others under torture in some circumstances, then you ought to be prepared to do the torturing yourself?_

On the principle of "if you want a job doing properly...", that ought obviously to be the case.

[Paddy Carter]

Jarndyce

I hadn't looked at it that way - I was thinking only of the "upping surveilance" sort of thing. I'll have to think about it. Does that make a difference? Would those who object to the UK using the product of torture be appeased if we said "yes, but we're only using it to try and save lives"? Couldn't that argument be made rather often - catching bad guys saves lives doesn't it?

Is the 'fell into our lap' exceptional case the one circumstance that permits use of information obtained under torture , whilst allowing us to say coherently that we are not complicit in torture? I wonder if this is what Lord Carlile had in mind - but I don't think this is what Chris is missing (it's too obvious, and too weak). Does being able to say 'it fell into our lap' allow us to side-step the argument that: "if you would use information obtained by others under torture in some circumstances, then you ought to be prepared to do the torturing yourself."

It's got to be difficult to make this claim in practise. Can we ask Egypt, for example, to stop using torture, if they can turn round and say, well you used the information when "it fell into your lap". And doesn't using information that "falls into our laps" slide into effectively creating demand for the product of torture? Has something "fallen into our lap" when a state directly passes on their intelligence to us (perhaps as has been alleged in Uzbekistan, I don't know)?

I still cannot see a stance on torture that would satisfy Chris in a way the Lord Carlile does not, which does not leave us having to be prepared to ignore information that might save lives. But I might have misunderstood what he's getting at.

[Innocent Abroad]

A thought experiment.

The government of Dystopia restores capital punishment for, say, five years. At the end of that time there have been 100 murders, compared to 150 in the previous five years. However, five innocent people have been executed in error. Should the government extend or repeal the law?

[Tim Hicks]

Paddy,

"""
The obvious question, though, is what would you do if you were handed a piece of paper saying: "A lorry will be driven into the market on Saturday and blown up" - and you knew it was obtained by torture?
"""

I guess the prudent thing would be to *investigate* whether such a plan existed, but not *convict* based on the evidence on the piece of paper.

At the end of the day, that just moves the dilemma down one level though, I suppose. Is it ok to torture as long as you don't actually use the evidence in court?

Actually, such a course of action may provide some empirical evidence as to the efficacy of using torture as an investigative tool. I mean, you would then have answers to questions like: "What proportion of information obtained by torture led to prosecution(s)?"

Tim

[Paddy Carter]

Tim - I think I had got the wrong end of the stick - I'd missed that Lord Carlile was talking about use of information as permissable evidence in court, I'd just assumed the post was about using information obtained under torture full stop - i.e. counter terrorism. So my comments probably don't make much sense. Although as you say the moral issues are still there, just moved into a slightly different arena.

[Jarndyce]

IA: I'm thinking you've gone way off topic there, but all you've set up is a basic utilitarianism vs. liberal rights dichotomy. Please tell me you're not attracted to the crude utilitarian argument...?

Paddy/Tim: point taken about my pragmatic line just shifting the debate down a level, but I do think there is a clear distinction here. 1. Utterly rejecting the use of torture systematically, and the expulsion of information obtained through torture from a court of law and the legal process entirely. *and* 2. Not probing every single piece of information that comes your way as to its provenance. It's not looking the other way as such, just a recognition of the everyday practicalities of intelligence work, surely. There's a whole leap from there to (even tacit) approval of rendering suspects to third countries, locking people up in Guantanamo without access to lawyers (a form of torture, IMHO), or deporting people who will surely face torture at home.

[Phil]

"I do think there is a clear distinction here. 1. Utterly rejecting the use of torture systematically, and the expulsion of information obtained through torture from a court of law and the legal process entirely. *and* 2. Not probing every single piece of information that comes your way as to its provenance. It's not looking the other way as such, just a recognition of the everyday practicalities of intelligence work, surely."

I don't think this works. It's true that police work requires a lower standard of evidence - you can follow up a tipoff without being confident that it will pay off. But the point about torture and evidence isn't that torture evidence may be unreliable - it's that it's statistically certain to be unreliable. Imagine that the suspect tipoff comes from the government of Uzbekistan, which is known to use torture as a means of repression - with a bit of 'anti-terrorist' interrogation thrown in for legitimacy. Do you still follow it up? (The evidence is that victims of the Uzbek torturers will say precisely what the torturers want them to say, and that most - if not all - of them have nothing to do with terrorism anyway.)

I feel that the torture debate starts from false premises, several times over; it seems to be assumed that nobody is ever tortured unless all other forms of interrogation have failed, and that the information produced by torture is always good (the torturers of the Spanish Inquisition believed something similar - once the body had been broken the soul could speak freely, or words to that effect). But we know that this isn't the case: people aren't tortured only when the authorities know for certain that they've got the right person (rare) and know that only a confession will secure the vital information (very rare indeed). In fact many governments torture people all the time, generally for no reason but to subdue and brutalise them. In that context, if you give me a piece of information and tell me it was extracted under torture, I'm bound to start from the presumption that it's garbage; perhaps 99% of the time, it will be. Carlile seems to take the view that we should allow 99%-garbage evidence into /really important/ cases; I can't say I see the logic.

[Jarndyce]

_But the point about torture and evidence isn't that torture evidence may be unreliable - it's that it's statistically certain to be unreliable._

That isn't *my* point about torture. My point is that it's *unacceptable* not necessarily unrealiable. Sure, it's probably much, much less reliable than "proper" evidence, but I'd be surprised if torture wasn't reasonably effective in some cases.

It has no place in a legal process, IMHO. But should information come your way whose provenance was uncertain, uncheckable or even likely to have been extracted under torture, I don't see any problem with using that evidence informally if it wasn't solicited, even tacitly. Even if only to rule a scenario out.

[Phil]

"My point is that it's *unacceptable* not necessarily unrealiable. Sure, it's probably much, much less reliable than "proper" evidence, but I'd be surprised if torture wasn't reasonably effective in some cases."

I'd say that even making that statement requires you to turn a blind eye to the realities of torture. Put it like this: lots of torture goes on in the world, and most victims are tortured for no other purpose but to crush them. (They may be interrogated after they've been crushed, but nothing they say by then means anything - and they would have been tortured for that long anyway.) That's a big slice of evidence obtained under torture - probably 65 or 70% - that's just not trustworthy. Then you've got people who are held under suspicion of crime, and are interrogated, but are also tortured to the point of crushing them. They'll say anything to make it stop, so we can forget about what they say as well. That's probably another 25% of torture evidence ruled out *as evidence*, without even needing to think about ethics.

That leaves the category of genuine attempts to extract information by torture. Some of the victims won't know anything, but will say whatever you want to make it stop: bad information. Some of them won't know anything that you don't already know, but will come under pressure to make up something different to make it stop: bad information.

Put all that together, and how often is the victim being tortured for information he is able to give up - one in a hundred? How much torture evidence is actually going to be good - 1%? Even if we assume that evidence obtained by torture is ethically OK, it's a ludicrously bad bet *as evidence*.

In any case, the 'good evidence'/'ethically unacceptable' dichotomy is fundamentally false, as that TalkPolitics piece demonstrated. Freely volunteered testimony is evidence - coerced testimony isn't.

[Jarndyce]

Obviously I accept all that. Of course most evidence obtained by torture is shit - and more than anything it's a tool of state terror, nothing more. But I'm not sure the fact that the majority of torture is used simply to repress is relevant here, as you and I can't know a priori whether a bit of evidence that drops in our lap is good or bad. If you even have a 1% chance to save 100 people, and you haven't solicited the breach of any fundamental rights in the process, do you follow up? I'd say yes. I'd go further: if it's your job to protect your fellow citizens, I'd say you're *obliged* to.

I'm not sure, anyway, that rejecting torture just because it's unreliable is an avenue I fancy going down. What if, theoretically, scientists could show that certain types of torture *were* reliable? Would it then be acceptable?

[confused]

If something in the greater scheme of things saves lives, it is probably a good thing. Issues surrounding torture are like those surrounding war: it suspends (and possibly negates) morality. But to coin a glib Star Trek-esque line: the needs of the many outweigh the needs of the few. It isn't a perfect world. Deal with it.

[Andrew Milner]

I can't believe possible use of torture by Britain or countries affiliated with Britain is even being discussed. No fudging is permissible here; only an unequitable denunciation of torture and information obtained by these barbaric methods will suffice. Anything less and Britain will have joined the bad guys. That torture is even being contemplated is so deeply disturbing, because those being swayed by MI5 and government argument are not monsters. Presumably those that even consider torture acceptable whatever the circumstances, lack the imagination to grasp what's involved. The US followed by Britain is rapidly joining the ranks of pariah nations. Condemning the US and Britain for crimes against humanity, including torture, is one small step from justifying terrorism. No wonder Blair feels the need to make it illegal. Brits on holiday will find people refuse to shake their hand or serve them in shops and restaurants. Are you ready for that? As an ex-pat in Asia, my position is buttressed by the "English gentleman" image. When reality catches up with image, all I'll have going will be my good looks, ready wit and self-effacing charm. (That’s a joke for you infidels lacking a sense of humour.) So cut it out guys; you're making me look bad. Don't do the crime if you can't wear the slime.