The Torturer's Dilemma: Analyzing the Logic of Torture for Information
The Torturer's Dilemma: Analyzing the Logic of Torture for Information
The Torturer's Dilemma: Analyzing the Logic of Torture for Information
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important factors into account - one that restricted its use to discovering time-insensitive in<strong>for</strong>mation,<br />
and <strong>the</strong>n only in <strong>the</strong> context <strong>of</strong> a well-developed in<strong>for</strong>mation network to vet <strong>the</strong> captives' revelations?<br />
In o<strong>the</strong>r words, would Dershowitz's prescription <strong>for</strong> a system <strong>of</strong> torture warrants allow torture and<br />
liberal society to coexist?<br />
Ethically, torture could only be justified as a means <strong>of</strong> generating in<strong>for</strong>mation that could not be<br />
found (usefully) in any o<strong>the</strong>r fashion. If torture is most likely to back-fire when <strong>the</strong> situation is time-<br />
sensitive, <strong>the</strong>n perhaps torture might be justified in case where <strong>the</strong> in<strong>for</strong>mation sought – while time-<br />
insensitive – is none<strong>the</strong>less important enough to <strong>the</strong> captive that <strong>the</strong>y will not divulge <strong>the</strong> in<strong>for</strong>mation<br />
without <strong>the</strong> threat <strong>of</strong> severe pain. Such in<strong>for</strong>mation is likely to be strategic in nature, ra<strong>the</strong>r than<br />
tactical – how is <strong>the</strong> cell structured, ra<strong>the</strong>r than who leads it, <strong>for</strong> example. 114 Assuming <strong>the</strong>re is<br />
in<strong>for</strong>mation that satisfies <strong>the</strong>se conditions – time-insensitivity, deep value <strong>for</strong> <strong>the</strong> captive, strategic<br />
importance <strong>for</strong> <strong>the</strong> authorities – <strong>the</strong>n restricted torture could very well work, or ra<strong>the</strong>r success would<br />
not be ruled out. For torture to operate successfully, however, <strong>the</strong> authorities must be able to credibly<br />
commit to investigation, and this is a far harder condition to satisfy. <strong>The</strong> in<strong>for</strong>mation sought would<br />
have to be both valuable and empirically verifiable, but also inaccessible except through torture.<br />
<strong>Torture</strong> could not be used as a substitute <strong>for</strong> investigation, but ra<strong>the</strong>r as a compliment. Let us now<br />
consider whe<strong>the</strong>r <strong>the</strong> history <strong>of</strong> torture provides any clues as to whe<strong>the</strong>r or not this is likely to occur.<br />
Let us consider <strong>the</strong> evolution <strong>of</strong> torture. If torture and investigation act as compliments, <strong>the</strong>n<br />
<strong>the</strong> greater <strong>the</strong> authority's investigative capabilities (technological and human sources <strong>of</strong> intelligence,<br />
organizational capacity, in<strong>for</strong>mational technologies) <strong>the</strong> more successful and useful torture should<br />
become. Where <strong>the</strong>se investigative capabilities are not well developed, torture should more <strong>of</strong>ten back-<br />
fire, resulting in in<strong>for</strong>mational corruption. Consequently, we should expect to see more torture as <strong>the</strong><br />
state's ability to monitor and investigate increases. But historically we see exactly <strong>the</strong> opposite<br />
relationship: <strong>the</strong> use <strong>of</strong> judicial torture disappeared precisely with <strong>the</strong> birth <strong>of</strong> <strong>the</strong> state's ability to<br />
organize in<strong>for</strong>mation came into being. 115 In modern times, those states that have made use <strong>of</strong><br />
in<strong>for</strong>mational torture have done so in situations where precisely this capacity is attenuated: in colonial<br />
114 It is important to note that <strong>the</strong> ultimate targets <strong>of</strong> a torture regime – an insurgency, conspiracy, or network – is unlikely to<br />
be passive in <strong>the</strong> face <strong>of</strong> an in<strong>for</strong>mational threat. That is, <strong>the</strong>y have every incentive to create as time-sensitive a horizon<br />
<strong>for</strong> in<strong>for</strong>mation possessed by <strong>the</strong>ir operatives in order to minimize <strong>the</strong>ir vulnerability. A good example <strong>of</strong> this process is<br />
<strong>the</strong> practice <strong>of</strong> having a cell disband within 48 hours <strong>of</strong> an operative failing to check in, or <strong>of</strong> o<strong>the</strong>rwise altering plans<br />
and organizational structures in response to potential discovery.<br />
115 This is a major implication <strong>of</strong> Foucault (1973).<br />
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