A small and very pleasant dinner party among good friends last night included an old friend, A (an undergrad roommate of mine long ago), who now runs a non-profit firm based out of Bosnia for developing independent investigative journalism. As a couple of people at the dinner have worked on the torture book with me, discussion turned to torture. A had spent time in Burma/Myanmar with journalists who had also experienced torture. The Burmese victims recounted their experiences to him and had compiled a sort of database of information and stories on torture.
I've talked about the problems (here and here, for example, and elsewhere) I see with the standard "debate" about torture in the US: the omnipresent utilitarian "ticking time bomb" argument that torturing the one in order to save the many is morally justified. A main part of my doubts about this argument is the problem of knowing or reasonably suspecting that the torture victim possesses valuable information about the ticking bomb. It's fairly easy to imagine the inverse scenario in this hypothetical: the reductio that the information sought from the torture victim is required prior to torture in order to serve as the justification for the torture that putatively yields that same information. There may be a difference in the content of the information on either side of the actual torture, but these differences turn quickly into legalistic quibbles. The moral argument is simply a bad one that many are trying to use as the basis for a stronger argument precisely because - in a curious mirror of the reductio - the justifiers a priori wish to justify torture while using an argument that relies entirely on the a posteriori.
A large part of the reason for the existence of the forthcoming book is that I think this argument is entirely specious as both a moral argument and as once placed in more practical terms. For one thing, as Dahlia Lithwick pointed out recently [via Scott Lemieux's discussion], Bush's demand that Congress give him a law regarding "interrogation" practices specifying what is appropriate treatment and what is not for the huge number of people he has locked up is designed to provide a highly specific frame of reference around which an "alternative interrogation" regime would then be constructed. That is, give Bush a legalistic definition of what amounts to torture and he'll discover the ways to remain true to the letter but entirely unfaithful to the spirit of the law. You say "waterboarding," I'll say "bobbing for apples." This is the so-called problem of defining torture.
Everyone involved knows that the crucial element of torture is not physical pain, but psychological stress resulting in near-absolute humiliation, total submission, the lingering knowledge of one's betrayal, and ego-less disorientation. The psychological and disorienting stress of both physical pain and non-physical psychological pressure (starting with the infamous hoods, a practice of most oppressive, torturing regimes) yields information. As A noted about the Burmese victims, all of them have some point in their account of their torture where they simply do not remember - this is the moment their entire body and psyche were so utterly collapsed that they yielded information. Elsewhere, the disingenuous Richard Posner (here) has tried to argue that psychological torture isn't really torture. On the contrary, the entire point of torture is ultimately psychological.
Yet, the information might be misinformation. This worries those who think torture is justified, such as Fritz Allhoff (in this volume) - in another poor ticking time-bomb argument - and thus serves as a qualifier of sorts in Allhoff's mind, although he appears to be worried about intentional misinformation. This is where things become interesting as another glaring hole in this kind of argument. How does one ensure against misinformation in order to make the ticking time-bomb case? The Burmese victim's moment in which he cannot remember anything is the moment in which information pours out of the tortured psyche. It's unlikely to be coherent or rational. Torture does this to a person. How to guard against this misinformation problem? Allhoff can't offer anything. Neither can Posner or anyone else who makes this argument. While perhaps not the weakest part of this overall argument, it is the central point in which it becomes clear that ticking time-bomb proponents have framed the problem wrongly in the first place. I maintained above that the issue is mis-framed because of an a priori commitment to justifying torture. But here's the central problem, the central problematic assumption: it is never a calculation regarding the one versus the many.
The Burmese case shows that, while the moment of memory loss may be the moment in which information pours out of the victim (what proponents of torture call the instrumental "success" of torture), what is important for the torturers is not that one data-point of information. As individualized, it is largely useless information/misinformation which can be neither verified nor falsified (unless it does actually yield the location of the "ticking time-bomb" - there is no evidence that such an actual type of case has ever existed). The raw information must be triangulated, so to speak.
The Burmese government would torture many people in order to evaluate various individual bits of information and compare them with other bits of information/misinformation in order to build a coherent account of actual information. The torturer cannot verify one way or the other whether information is useful or not without the practice of torture being widespread. The larger the number of those tortured, the more interesting and accurate the information.
This is the reality of the Bush administration's use of torture as well. It's not a reality that fits the hypothetical ticking time-bomb scenario because it must be widespread in order to work (where "work" is strictly defined in this particular context as yielding valuable information). The neat political side-effect to the reality of a necessarily widespread practice and the particular way the moral discourse on torture is framed is that it allows the administration to claim torture is an individualized practice and can thus blame the "few bad apples." These bad apples are given up for political and legal sacrifice as the one in service of the many.
Further, the demand that torture be given specific legal description would allow the administration to build up the widespread practice of torture - as simply extra-legal - around an easy legalistic target which it would assiduously avoid. The practice of torture itself would then flourish - instrumentally, triangulate - with ease.