03/05/2005

Torture

Thanks for the reminder about the loose end I've left here!

I'd like to note the uncanny knack that the good people of Fox have for bringing current issues into 24 when they are ripe for discussion in the real world. A case in point is episode 18: Here the question comes up whether torture should be permissible if it can lead to the prevention of a terrorist act (to go for a safe measure, they took a nuclear strike, no less). Action oriented as 24 is, they also answer the question right away: Jack Bauer takes the matter into his own hands without waiting for the whimpy president's ok on the matter. All the surrounding vibe is very clear also: There can be no doubt about the need for such measures.

I beg to disagree, and very strongly at that. The absolute prohibition of torture and the inviolability of the physical person is one, if not the major historic achievement of Open Societies under the rule of law. While I personally often find myself thinking in categories of Realpolitik, in this particular case, the realist's temptation to permit torture for the greater good would lead to the loss of legitimacy of the state in question and thus would play into the hands of the terrorist perpetrators. But that's not all: Maybe two weeks ago, there was an excellent article in NZZ summarising the positions on the matter of two judges of the highest courts in the UK and Israel respectively, who held up that position with the argument that the terrorist threat, while being bad indeed, does not go to the root of Society at large and therefore cannot justify such an extreme measure. The British Law Lord noted for instance that this would be unprecendented since not even under the threat of Nazi invasion in WWII, the prohibition had been given up.

I'd like to add some public choice technicalities: Government is obviously interested in gaining said power because it would receive unprecedented levers. But, as Lord Acton had it: Power tends to corrupt, and absolute power corrupts absolutely. This is particularly true if the power to torture may be invoked on grounds of prevention of terrorist acts, which by necessity are defined loosely. Invariably, the matter will be shrouded a layer of secrecy, which brings us back to the good old age of raison d'├ętat. Is that really what Messrs. B&B want? One might be tempted to harbour suspicions, if they were not referring to freedom so much ...

Eventually I think the solution provided by 24 is not the worst: Let's keep the absolute prohibition in place. If there is crucial information accessible only by the use of force, the officers responsible always have the option of breaking the law and taking personal responsibility in the ensuing investigation. Then, and only then can it be ascertained that there is no rule that is prone to abuse, and only then are the barriers to the use of force high enough to ensure that it is only deployed in the most urgent & important cases. In the end, there is always the possibility of a formal Pardon. As figura showed in 24, torture didn't even yield success there ...

With that, I'll take my leave from you for now. Next time you hear from me will likely be from Philadelphia, PA where I'll be spending the rest of the week.

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