Although I can't agree with him, I can well understand why Eugene Volokh would feel that torture isn't always a bad thing: some people are so depraved that one can't help concluding that they deserve no better; which isn't at all the same thing as saying they should be treated no better.
HOMOSASSA, Fla. — A registered sex offender has confessed to killing Jessica Lunsford, the 9-year-old Florida girl who has been missing since February, police said Friday.
[...]
Authorities said that John Evander Couey (search) admitted that he abducted Jessica from her bedroom more than three weeks ago. He also told them the general area where the young girl's body could be found, according to police.
A child's life snuffed out just so some lowlife could get his jollies off: is there any parent who wouldn't feel like making this man suffer a lingering and agonizing death? And yet, as loathsome as I find John Evander Couey, I would not accede to demands for him to be tortured if I were ever asked to do so.
My problem with torture isn't that it's always bad in an objective moral sense, any more than killing is always bad, but that it cannot be made a part of any decent country's legal system, given the certainty that there will be occasions on which it will either be deployed against the innocent, or applied merely because its applicant has a sadistic streak, rather than because justice calls for it. What is true is that if, to be hypothetical, it was the case that the application of torture would gain information which could save the lives of tens or hundreds of people, and that said information could be obtained in no other way, I would have to turn a blind eye to its use; the notion that "torture is always wrong under any circumstances" is one I find as unrealistic as saying "war is always wrong", an empty slogan only those without responsibility are free to adopt; it just so happens that in cases like the one in the story above, or that of the Iranian child murderer pointed out by Volokh, nothing further is to be gained from the use of torture other than the satisfaction of a taste for vengeance, which is too low a threshold for the application of such a dangerous instrument.
One other thing I'd like to add: I've often run across arguments in the past to the effect that torture is "always" wrong because it isn't even useful in real-life situations, as tortured prisoners will tell one anything. Such arguments are for the most part nonsense; it is certainly true that tortured prisoners will eventually say anything they think their interrogators want to hear, if pushed hard enough, but this doesn't mean that it's useless: the torturer is often in a position to discern whether or not the information received is worthwhile or not, and if not, the victim will be well aware that yet more in the same vein will be coming his or her way, providing powerful incentives to tell the truth. What is more, it isn't always the case that every subject of torture is an innocent ready to fabricate stories to obtain relief: can anyone really believe that Saddam doesn't have secrets worth yielding, or Osama bin Laden?
The evidence of history also argues against the claim that torture is always or even mostly ineffective: the Gestapo used it to tremendous effect against both the French Resistance and the circle of plotters around Claus von Stauffenberg. Similarly, the KGB (not the NKVD) obtained useful results by taking visitors to the basement of the Lubyanka or Lefortovo on many an occasion. It is simply a waste of time to try to argue from pragmatism for an absolutist position against torture, as the evidence will not support such a rigid stance. I don't like torture, I certainly don't buy that it has any role to play in a criminal justice system, but I'm not willing to play along with the delusion that just because something strikes me as morally distasteful in the extreme, it cannot possibly deliver useful results - that is just reasoning backwards from desired conclusions.
PS: I see that Matthew Yglesias already had intelligent things to say about the issue. While I'm not as sanguine as he is about the likelihood that an individual who successfully used torture to save lives would be off the hook thanks to public opinion (what if a need for secrecy prevents the person's heroics from ever coming before the public eye?), I do think that the knowledge that there's no certain "get out of jail free" card awaiting one is useful in preventing the application of torture in anything less than truly dire circumstances.
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