Is torture unconstitutional?

[Volokh, Eugene]

        I agree that we shouldn't overestimate the utility of torture -- but
we shouldn't underestimate it either.  Torture often gives unreliable
information, and I think there's therefore good reason to automatically
exclude all *statements* gathered under torture from all trials, either of
the subject or of others.  Likewise, torturing someone merely so that he
confesses his own guilt seems all minus and virtually no plus.

        But if the goal is to get, say, the location of a bomb, or of other
evidence that points to a bomb, then the situation is different:  There the
torture (even serious, painful, physically harmful torture) may well provide
some valuable -- sometimes, with the location of a bomb, immensely valuable
-- information.

        Now again, maybe we should still have a per se ban on torture,
despite this.  But I think that we do have to recognize that such a ban
would operate *despite* the possibility that torture can indeed provide very
useful information, and not because somehow torture, even hard-core torture,
is useless.

        Eugene

> -----Original Message-----
> From: Laurence Claus [SMTP:lclaus at SANDIEGO.EDU]
> Sent: Thursday, June 13, 2002 3:48 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Is torture unconstitutional?
>
> Perhaps careful definition of terms can extricate us from this moral and
> legal dilemma. The species of torture which fit Dan Levin's description of
> "degrad[ing] the torturer as well as inflict[ing] pain on the victim" are
> not very reliable means of  discovering truth anyway. As a means poorly
> adapted to the end of protecting us, their prima facie immorality seems
> almost irrebuttable. Treating terrorists in ways which do them little or
> no physical harm, but which may coax useful information out of them, seems
> to me an altogether different matter. The Brits are periodically rebuked
> by the European Court of Human Rights for their treatment of IRA
> terrorists, on the ground that techniques like sleep deprivation and
> drugging are torture. To the extent that international law, reflected in
> various multilateral treaties, has embraced a broad conception of torture,
> it may be time for the United States to advocate a more precise (and
> narrow) definition. That definition must, of course be something with
> which we are content to live when the issue is foreign governments'
> treatment of our citizens.
>
> Laurence Claus
> University of San Diego School of Law
>
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