In 2004, German police captured a man they believed had kidnapped a young boy. They questioned him for two days, and then, fearing for the child’s safety, a senior officer authorized an interrogator to use pain, if necessary, to get information.
After being told what was being planned but before any force was used, the suspect confessed and told police he had killed the boy and where they could find the body.
Though they had gotten the desperately needed information without resorting to violence, both the superior and the interrogator were charged with a crime under the German constitution’s absolute ban on torture. Rather than going to jail, however, the two were let off with a fine after the court found “massive mitigating circumstances.”
German courts, even faced with a constitutional prohibition, found that in this case, torture was “quasi-acceptable,” according to University of Texas Law Professor Sanford Levinson, otherwise the two would have gone to jail.
That’s just one example of the “ticking time bomb” situation where police, military, or other government personnel are faced with a desperate need for information to save lives, Levinson said. Multiply the German child’s life by a thousand, or several thousand, and you have the national security situation in the United States, where the public and policy debate over torture is raging.
Levinson, a former fellow at the Safra Foundation Center for Ethics, used the German case to help illustrate the conundrum that torture presents ethicists, policymakers, and ordinary people who are concerned about the issue.
Levinson spoke Thursday (Oct. 26) at the John F. Kennedy School of Government’s Starr Auditorium. Safra Center Director Dennis Thompson said that as a way to mark its 20th anniversary this year, the center is inviting former fellows to return and speak during its lecture series.
Thompson, Whitehead Professor of Political Philosophy in the Kennedy School and in the Faculty of Arts and Sciences, praised Levinson’s views on the U.S. Constitution as often going against prevailing views, but being widely respected nonetheless.
Levinson’s talk drew from a variety of sources, but he concluded that, despite his inclination to think an absolute ban on torture might be best, he still believes there will be situations in which governments must resort to torture for a larger public good.
One problem with banning torture, he said, is that in doing so, those writing the laws must define what torture is. Once that is done, he said, it immediately legitimizes techniques that may be very close, but that don’t fit the legal definition. It also may legitimize actions that are as bad as those banned, but are not on the list.
If torture is not to be banned, then the country needs to set up a system where it is regulated so that it doesn’t become widespread. One way of doing that would be for the president to authorize its use, but to then become responsible – and liable for punishment – should that specific case later be deemed unacceptable.
Either way, Levinson said, the nation’s lawmakers need to wade into this difficult territory.
Levinson compared torture with slavery – citing the Dred Scott case – and warfare. Like slavery, he said, torture is abhorrent to our society. Also like slavery, torture is largely about control. It is conceivable, he said, that if the questioners control the subject’s environment completely and the subject recognizes that he or she is completely in the questioner’s control, violence will not be needed.
“Both Dred Scott and those who defend torture today ask us to believe there are entire categories of people who have no rights,” Levinson said. “Torture may be less about concrete acts and more about total control and subordination.”
War, on the other hand, is more accepted by society than torture, Levinson said. Wars, though violent, are distinguished from torture by having willing participants on both sides. That distinction blurs, however, as war increasingly involves civilians.
The problem with the current war on terror, Levinson said, is that the opponent is not tied to another country against which retaliatory strikes can be made. Without the certainty of retaliation, there is no deterrence. That makes prevention an important way to head off a terrorist act, which can mean getting information about imminent strikes from members of terrorist organizations.
“Do we really believe there is no possible situation to legitimize the use of torture in any case?” Levinson asked.
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