Is torture unconstitutional?

Gey, Steve SGey at LAW.FSU.EDU
Fri Jun 14 16:41:42 PDT 2002


I'm not ready to give up on the "shock the conscience" analysis, despite its
inherently gauzy outlines.  I continue to believe the test embodies as a
matter of constitutional law the basic principle that there are some
official actions that civilized societies simply will not abide, no matter
what the consequences.  At some point, the ends will not justify the means.

The pro-torture position depends, in the final analysis, on a purely
utilitarian analysis of comparative harm.  From this perspective, why not
sacrifice one person's health, dignity, or even life, if the sacrifice of
that person will save one thousand other lives?  (And yes, the graphic
nature of the potential harm to the thousand others churns the stomach just
as much as the details of the torture inflicted on the suspected terrorist.)
But it seems to me that proponents of torture cannot cloak the analysis in
terms of the guilt of the suspected terrorist.  It should be irrelevant to
the utilitarian analysis whether the tortured suspect is himself guilty of
involvement in the planning of the terrorist act.

Consider the following scenario:  Government agents capture a suspected
terrorist, who has information about his group's impending nuclear attack on
a major city.  After intensive interrogation, including torture, the suspect
remains silent.  So the government agents find and kidnap the suspect's
three young children.  The agents bring the children to the room where the
suspect is being interrogated and tell him that if he does not talk they
will torture and kill the children in the suspect's presence.  The suspect
still remains silent.  So the government agents torture and kill the first
child to demonstrate that they are serious.  The suspect then breaks down
and tells the agents what they want to hear and the attack is averted.

Have the government agents acted legally under the "shock the conscience"
analysis?  If the answer is "no" because the child is innocent, then the
issue of the legitimacy of torture really turns on the guilt of the person
being tortured.  If that is so, then the strength of the comparative harm
analysis becomes much less compelling; torture is really being inflicted
only in part because it will save many other people, and in equal part
because the suspect is guilty of participating in the impending crime and
therefore "deserves" the pain inflicted during the torture.  But if the
torture is based on some notion of just deserts, then even the most basic
principles of (procedural) due process dictate that a small handful of
government agents operating under intense pressure and with incomplete
information should not be allowed to decide based on their own moral
compasses whether a particular suspect "deserves" torture.

On the other hand, if the answer is that guilt doesn't matter and torturing
and killing the innocent child is permissible simply because it will have
the effect of saving many other innocent lives, then we should reconfigure
our entire approach not only to constitutional law but the law of war
crimes.  On that logic, a government fighting a guerilla war should be
entitled to invade a village in guerrilla territory and torture and kill the
village's innocent civilian inhabitants until someone in the village spills
the beans about the location of a nearby guerrilla camp from which damaging
raids would otherwise soon be launched.  The same moral and legal calculus
is at work in the village and the terrorist-torture scenarios:  one hundred
innocent lives saved trumps the ten or twenty innocent lives intentionally
sacrificed.  Unless I have badly misread the relevant legal trends, this
logic runs contrary to every development in domestic and international human
rights and war crimes law since World War II.

Steve Gey
Florida State University
College of Law

-----Original Message-----
From: Volokh, Eugene
To: CONLAWPROF at listserv.ucla.edu
Sent: 6/14/02 1:38 PM
Subject: Re: Is torture unconstitutional?

        That is the question, isn't it -- is it the case that "the means
ARE all that matter" here?  It's easy to assert that, but I don't see
how it's proven.

        And the contrary claim, of course, isn't that an act becomes
"less unjust simply because it is undertaken by a generally virtuous
actor."  Rather, the claim is that an act becomes less unjust if it is
done to the guilty (or even perhaps to those who are likely guilty) in
order to save the lives of thousands of innocents.  Now there are strong
arguments that can be made against this -- but simply saying that all
torture is morally equivalent to the mass slaughter of innocents ("Once
we start using torture as a means to an end, are we any better than al
Qaeda?," to quote the original post) hardly proves it.

        Likewise, I'm not sure how much mileage we can get out of the
"shock the conscience" test -- the pro-torture argument is that things
that normally shock the conscience become less shocking when they are
needed to save the lives of thousands (or more) from weapons of mass
destruction; and it might even shock the conscience to *abstain* from
normally prohibited action when the lives of thousands of innocents are
on the line.  So, sure, "certain actions are prohibited no matter what
procedures attend them" -- but this doesn't resolve the question whether
those actions are prohibited no matter what other circumstances, such as
a hidden nuclear bomb in Manhattan, might attend them.

        Finally, as to getting graphic, it seems to me that those who
oppose the use of torture here would be making a tactical mistake by
trying to rely on visceral horror at its methods.  Those who support
torture in limited circumstances, I think, have a much better visceral
case.  Would you rather be holding the body of your son who's dying of
massive nuclear-bomb-induced burns, or terminal radiation poisoning?
Would you rather watch while your daughter dies a slow death from cancer
induced by a dirty bomb, when you knew that, but for your squeamishness,
you could have beaten the location out of the monsters who planted the
bomb, and saved your beloved child's life?  Many people would say that
they'd be delighted to inflict whatever unspeakable horrors on a
terrorist -- or even a likely terrorist -- to avoid the far greater
horrors inflicted on their loved ones and thousands of other innocents.
Now this hardly disposes of the issue.  But it does suggest that if we
get graphic, the pro-torture forces may well win.

        Eugene



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