Wednesday, December 14, 2005

Society, The State, And Torture

There has been a lot of debate recently about the acceptability of the use of torture. This article at Slate critiques Charles Krauthammer's defence of torture in limited circumstances, and also links to Andrew Sullivan's piece in the New Republic on the same subject.

The one thing that all articles highlight is the problem of making good laws. For a good law should be applicable as an absolute standard, so that it is clear what is meant by the statute, what it expressly allows and what it expressly forbids. If we take the "ticking bomb" example - is torture justified if it can obtain information that will prevent the imminent execution of a terrorist attack that will kill millions - we can see the limitations of allowing torture, by law, in limited circumstances.

I would wager that few disagree that torturing one man to procure information that would save the lives of millions, and where the gathering of such information is necessary at highly short notice. But how can this situation be written into law? Such a situation of necessity implies absolute certainty that this man possesses the information - a certainty that you cannot have. It is an essential legal principle no-one should be forced to prove a negative, and the importance of that becomes even clearer when the use of torture - as Sullivan describes it, "the banishment of freedom from a human body and soul" - is the matter at hand.

Thus, the "salami-slicing" - the testing of principles by application to consistently reduced models - mentioned in the Slate article works on two levels. Firstly, the number of lives at risk in a terrorist atrocity has to be considered. Secondly, the chances of a suspect possessing the necessary information need to be weighed up. Throwing these variables into a law, and thus asking judges and juries to make these kinds of judgement calls in interpreting the law, will undoubtedly lead to confusion. Confusion in these cases almost certainly means the use of torture where it was inappropriate.

There are, of course, many other compelling reasons against the use of torture. Evidence obtained through such means is invariably compromised, as most people would make things up to relieve themselves of pain. In the US, the constitution forbids the use of cruel and unusual punishments - a pretty fundamental personal right anywhere, I would have thought. Additionally, the use of torture undermines the legal principle that someone is innocent until proven guilty. Unless there is a presumption of guilt, there can be no justification for the use of torture under any circumstances.

So, where does this fit in with the duty of a government to protect public safety? Well, the one thing that is vital in keeping public safety is the rule of law. Once the rule of law is debased, then the glue which holds society together - the societally agreed laws by which everyone is bound - then matters of public safety become far harder to regulate. (This, of course, is why good law-making is so important in the first place). Yet, if the law-makers fail to protect human life where it may well have been in their power, questions will, rightly, be asked. Where there is a fair degree of certainty that measures can bring about that information, are they justified? It would be a morally difficult argument to make that they should not. A belief in freedom must never extend to the freedom of blowing others to pieces.

Legally, however, for the reasons outlined above, it is right to have an outright ban on torture. It is debasing to the person, it attacks some of the most essential and fundamental legal principles, and given the number of uncertainties that have to be weighed up before its use can be justified, it would be almost impossible to write a definition of torture into an acceptable, applicable law.

Thankfully, however, there is a solution to this, that lies within the beauty of our, or America's, legal system. Whilst legal codes should be clear and unambiguous, defined by what is written on paper only, a legal system should not. It is only right that whilst it should be simple to define what an offence is, the punishment for such an offence is definable through personal agency. That is, it is right that a judge and jury should have the freedom to determine the sentence given to a person convicted of a crime. And in America, the President, too, can exercise his judgement and issue a pardon, and commute any sentence given.

This helps to give a fleshed-out example of David Cameron's favourite soundbite - "there is such a thing as society - it's just not the same thing as the State." Where the State operates, it should operate in absolutes, trying, as far as is possible, to make sure that the operation of the government on the individual is as fair and as equitable as is possible. Where law is concerned, that means that the law should be as clear and as unambiguous as possible. If it operates in any other way, then no-one benefits, as no-one is sure what is allowed and what isn't. Discretion comes through the inclusion of society in the legal system - through the right of trial by jury and the right of the judge to punish in accordance with the nature of the crime.

Where torture is concerned, that means that it should remain illegal, de facto and de jure. However, if someone believes that the use of torture is justified and in the public interest, then they can make that argument in court. If that argument is accepted, even if the offender must be found guilty, discretion can be applied in the punishment and in the judge's remarks. That way, we do not run the risk of debasing our society by permitting the use of torture. Yet at the same time, if the dangers of not using torture are considered to have been worse than using it, we can find appropriate ways of dealing with the transgressions. That's how society and the state should work together.