Is torture unconstitutional?

[Gey, Steve]

One more missive on this subject and I'm done.  My main objective here is
really just to ascertain the precise nature of the arguments in favor of
torture:  Is the pro-torture position based on the utilitarian argument that
a few may have to be sacrificed to save many, or is it that the guilty have
sacrificed their right to have government interrogators honor the usual
rules about respecting a prisoner's basic human dignity, etc.  Eugene is
clearly not in favor of the first position, because he expresses reluctance
about torturing innocents even when thousands of other lives are at stake.
But once he concedes this, then I think he also concedes the abstract
constitutional point that started the whole discussion between Eugene and
Dan--i.e., that under the relevant constitutional analysis (such as the
Rochin "shocks the conscience" test) at some point the government is
prohibited from using a particular means (i.e., torturing innocents)
regardless of what important ends are achieved.

Oddly enough, I believe (contrary to Eugene) that the utilitarian argument
(which would permit the torturing of one or two innocents to save many more
innocents) is actually a stronger justification of torture than the argument
that torture should be limited to those "who we think are guilty."  There is
a certain coldly compelling logic in placing the interests of a thousand
people over the interest of one person.  Making the perceived guilt of the
suspect--rather than the saving of more lives--the key ingredient in
justifying the torture decision leads a skeptic to wonder whether saving
innocent lives is truly the main point of the operation.  The main point of
the operation, rather, perhaps is to see to it that some terrorist SOB gets
what he has coming to him, which could not be guaranteed if he was put
through the normal legal processes.  This conclusion carries with it the
faint odor of vengeance, which I suspect is why so many of the pro-torture
proposals come attached to various extra-legal methods of authorizing the
action.  We can't really have the legal system overtly approve of the
practice, the argument goes, so we should create compelling-interest
exceptions to ordinary due process rules, or utilize prosecutorial
discretion or a necessity defense to immunize the official torturers from
legal liability, or have the courts exercise a Jacksonian renunciation of
judicial control over the activities of the defense forces in time of war,
or maybe just rely on juries to let the torturers walk regardless of legal
technicalities.  Dershowitz's proposal for torture warrants will never be
implemented because the legal system cannot accommodate the unsavory
implications of purely utilitarian justifications for torture (i.e., the
occasional need to torture the innocent), and cannot explain the
underpinning of vengeance that is a strong impetus for torturing those "who
we think are guilty."  The law cannot embrace torture, in other words, but
it can certainly find a hundred reasons to look away while the dirty deeds
take place.

This, by the way, is exactly the model adopted by the Israeli Supreme Court
in its September 1999 decision outlawing officially sanctioned torture.  The
Court first ruled that the availability of the necessity defense to criminal
liability for official torturers under Israeli law could not serve as the
basis for officially authorized torture.  "In the Court's opinion, a general
authority to establish directives respecting the use of physical means
during the course of a GSS interrogation cannot be implied from the
'necessity defense.'"  On the other hand, the Court accepted the continued
applicability of the necessity defense to criminal liability of official
torturers.  Thus, Israeli law does not permit officially authorized torture,
but it also does not mandate the punishment of those carrying out the
illegal torture on behalf of the state. Permissible official illegality, you
might say.  If there are any Crits left out there, they must be enjoying
this immensely.

Steve Gey
Florida State University
College of Law

-----Original Message-----
From: Volokh, Eugene
To: CONLAWPROF at listserv.ucla.edu
Sent: 6/14/02 7:11 PM
Subject: Re: Is torture unconstitutional?

        I guess I'm not sure I understand Steve Gey's analysis here.  He
argues that we should never ever ever try to torture people we think are
innocent, and I see the appeal of that, even when thousands of other
innocent lives are at stake.

        But why does it follow from that that we should also never ever
ever try to torture people who we think are guilty, even when thousands
of other innocent lives at stake?  True, likely guilt alone may not be
enough to allow torture; the need to save innocent lives alone may not
be enough to allow torture; but it seems to me that the two put together
may well be a different story.  I guess I just don't quite Steve's
argument.

        Eugene