Hugh McLachlan: We face painful decisions on torture

George Bush has recently outraged many people by his admission that he personally authorised the use of "waterboarding" on a suspected terrorist. He suggests that such treatment is justified because it saves lives. There is a danger of overreacting to his claims.

Some people say that torture is never effective. Some say that the use of torture by the state must always be condemned because it would be the start of a slippery slope. Most significantly, some people say that torture is always wrong and never morally justifiable because we have an inalienable human right not to be tortured.

Information can be useful even when it is not, in itself, reliable. For instance, what Guy Fawkes said under torture was useful to his interrogators without being relied upon by them. It suggested avenues of investigation that could be pursued fruitfully. The information led to the gathering of reliable evidence that might not have been obtained without it. The information was more speedily obtained than it would have been without torture, and sometimes speed is of the essence.

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Slippery slope arguments are frequently feeble and rarely conclusive. What is said to be a downward slippery slope is as likely to be an upward greasy gradient. For instance, in Scotland in the past, torture was legal in limited circumstances. It could be authorised in trials for treason and for witchcraft. However, this did not lead to an escalation over time in its use.

Suppose that we knew that someone had information that was acquired as a consequence of his illegal actions. Suppose that we had good reason to think that many people would be murdered if this information were not revealed. If he does not reveal it, there is a case for saying that the use of torture could be morally justifiable.

Retention of the information is akin to but far worse than theft. We use physical force to remove illegally held possessions from people even if this is intrusive and painful. Why should we baulk at using physical force to obtain information? After all, the person could and should choose to reveal it. He could avoid the torture by choosing to reveal the information. He is not entitled to retain it.

The notion that our so-called "human rights" are inalienable is highly dubious.

We have a prima facie moral duty not to torture this person and he has a corresponding moral right not to be tortured but, by his actions and his failure to reveal the information, he has forfeited that right and absolved us from a moral duty not to torture him. If, as he should do, he reveals the information, his moral right not to be tortured and our moral duty not to torture him will be revived.What is torture? When does discomfort and pain become torture? It is commonly supposed that it can be justifiable to deprive people of their liberty and place them in unpleasant and uncomfortable conditions in prison for many, many years. Why, then, can it never be justifiable to subject someone to intense discomfort and pain for a few moments or seconds? It is far from obvious what difference in quality or quantity of treatment renders one sort of practice justifiable and the other unjustifiable.

In principle, torture might be justifiable in some circumstances. However, in practice, there is a clear danger that we might think that the relevant circumstances apply when they do not.

Guy Fawkes was caught, in highly incriminating circumstances, tending gunpowder in the vicinity of the House of Lords. He did not deny that he had fellow conspirators who were still at large and a danger to the state. However, until he was tortured, he refused to say who they were.

It would have been a social, civil and human catastrophe, at least in the short run, in England had the Gunpowder Plot been successful. The very existence of the state was in jeopardy, not merely that of the politicians who would have been blown up. Riots, starvation and so forth would have ensued. Civil war would have been a distinct possibility.

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Torture might well have been justifiable in this particular case. However, this was an extremely unusual case. The instances of waterboarding that George Bush refers to are not the same as the torture of Guy Fawkes. The culpability of the suspected terrorists is not as manifest. It is not certain that they have information that could be revealed by torture and that would save lives.

Furthermore, the scale of the devastation that the successful use of torture might forestall is not nearly as significant as it was with Guy Fawkes. States are far more resilient now than they were in the 17th century. Compared with, say, traffic accidents, terrorism kills comparatively few people. We tolerate the traffic fatalities. The state survives intact.

There are similarities between the prosecution of alleged witches in Scotland in the 16th and 17th centuries and the contemporary reaction of the state towards the threat of terrorism.For instance, because witchcraft was considered to be an exceptional sort of crime, it was deemed to be justifiable to use exceptional means, such as torture, in the detection and prosecution of suspected witches.

Sleep deprivation was a notable, characteristic form of treatment in Scottish witchcraft cases. The "bootikins" were a Scottish instrument of torture. They were applied in the celebrated trial for witchcraft and treason of John Fian, a schoolteacher who was executed in 1590. His legs were placed inside hollow tubes and wedges of wood were hammered between his legs and the inside of the tubes. His legs were shattered and the marrow from his bones oozed away. In addition, his fingernails were pulled out and pins driven into the exposed areas.

"Waterboarding" is, no doubt, very unpleasant. It creates the impression of imminent drowning. Nevertheless, its effects are temporary. To call both the "bootikins" and "waterboarding" torture is potentially misleading.

George Bush and others use similar arguments nowadays to justify the unusual treatment of terrorist suspects as was used in the past to justify the unusual treatment of suspected witches. They say that because terrorism is an exceptional sort of crime, exceptional sorts of measures are justified. This is a very dangerous position to adopt.

In Scotland they stopped prosecuting suspected witches not because they ceased to think that witchcraft posed a serious and unusual sort of threat to society but because they lost confidence in their ability to detect witches fairly, justly and accurately. They thought it was wiser to maintain their normal legal procedures and safeguards and bear the risk of the threat of witchcraft than to compromise their legal system.

Some political policies are more perilous than the problems they are intended to address. Unusual treatment of terrorists might well be counter-productive. It might encourage support and sympathy for them and their causes. More importantly, it might well be unjust and unfair to suspects.

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If we cannot envisage instances when it would be justifiable to apply torture, that might be a failure of imagination rather than a sign of moral virtue on our part. However, even if torture might in some circumstances be justifiable, it does not follow that it is wise to use it, even in these circumstances. It is not clear that the cases which George Bush refers to conform to the relevant circumstances.

We need not say that torture is never justifiable. We need not think that the state should never resort to it. However, for the sake of the integrity of our legal system, our society and our very way of life, we should be more reluctant to abandon our normal legal safeguards than George Bush appears to have been.

• Hugh McLachlan is professor of applied philosophy in the School of Law and Social Sciences at Glasgow Caledonian University