The Torturer's Dilemma: Analyzing the Logic of Torture for Information

important factors into account - one that restricted its use to discovering time-insensitive information,
and then only in the context of a well-developed information network to vet the captives' revelations?
In other words, would Dershowitz's prescription for a system of torture warrants allow torture and
liberal society to coexist?
Ethically, torture could only be justified as a means of generating information that could not be
found (usefully) in any other fashion. If torture is most likely to back-fire when the situation is time-
sensitive, then perhaps torture might be justified in case where the information sought – while time-
insensitive – is nonetheless important enough to the captive that they will not divulge the information
without the threat of severe pain. Such information is likely to be strategic in nature, rather than
tactical – how is the cell structured, rather than who leads it, for example. 114 Assuming there is
information that satisfies these conditions – time-insensitivity, deep value for the captive, strategic
importance for the authorities – then restricted torture could very well work, or rather success would
not be ruled out. For torture to operate successfully, however, the authorities must be able to credibly
commit to investigation, and this is a far harder condition to satisfy. The information sought would
have to be both valuable and empirically verifiable, but also inaccessible except through torture.
Torture could not be used as a substitute for investigation, but rather as a compliment. Let us now
consider whether the history of torture provides any clues as to whether or not this is likely to occur.
Let us consider the evolution of torture. If torture and investigation act as compliments, then
the greater the authority's investigative capabilities (technological and human sources of intelligence,
organizational capacity, informational technologies) the more successful and useful torture should
become. Where these investigative capabilities are not well developed, torture should more often back-
fire, resulting in informational corruption. Consequently, we should expect to see more torture as the
state's ability to monitor and investigate increases. But historically we see exactly the opposite
relationship: the use of judicial torture disappeared precisely with the birth of the state's ability to
organize information came into being. 115 In modern times, those states that have made use of
informational torture have done so in situations where precisely this capacity is attenuated: in colonial
114 It is important to note that the ultimate targets of a torture regime – an insurgency, conspiracy, or network – is unlikely to
be passive in the face of an informational threat. That is, they have every incentive to create as time-sensitive a horizon
for information possessed by their operatives in order to minimize their vulnerability. A good example of this process is
the practice of having a cell disband within 48 hours of an operative failing to check in, or of otherwise altering plans
and organizational structures in response to potential discovery.
115 This is a major implication of Foucault (1973).
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