Stephen Carter on Torture

Good article.

http://www.thedailybeast.com/blogs-and-stories/2011-05-11/stephen-carter-torture-can-be-wrong-and-still-work/?cid=hp:mainpromo2


German  authorities used beatings and threats of torture to get Magnus Gäfgen  
to confess to killing a child. Stephen Carter on why, if the goal is to  obtain 
information, torture can work. 


 
Unless you happen to follow the German press—or unless, as I did, you  happen to 
have taught a German law student interested in the subject of  torture—you might 
have missed the tale of Magnus Gäfgen, the convicted  child murderer currently 
suing the Hesse police for beating him and  threatening worse in order to 
extract a confession. The Gäfgen story  seems quite apropos now that, in the 
wake of the killing of Osama bin  Laden, our national debate over the use of 
torture has taken a bizarre  turn, from whether torture is right or wrong to 
whether it ever works.

Back in 2002, Gäfgen kidnapped an 11-year-old boy, Jakob von Metzler,  whom he 
then murdered. Without disclosing that Jakob was dead, Gäfgen  demanded a ransom 
of €1 million from the child’s wealthy parents. He  collected the ransom, and 
was arrested soon after. The police, who  thought Jakob was still alive, 
demanded to know where he was hidden. 



Gäfgen refused to say. According to Gäfgen’s lawsuit, they beat him,  then told 
him a torture specialist was being flown in, a man whose  training would enable 
him to “inflict more pain on me than I had ever  experienced.” At that point he 
confessed, telling the police that the  boy was dead and where his body could be 
found.

Now, I am not endorsing what the authorities did in interrogating  Gäfgen, but I 
do think it provides evidence—which should hardly be  necessary—that, if the 
goal is to obtain information, torture sometimes works. Let me repeat that: If 
the goal is to obtain information, torture sometimes works.

We know that information gained through enhanced interrogation has at times 
proved correct, and even useful.
I am not saying that I like torture. I am not saying we should do  it—I think we 
shouldn’t. But to rest the moral argument against torture on the proposition 
that it doesn’t work eventually starts to sound silly. We have created a 
peculiar cognitive  dissonance, where we want all good things to be true at 
once: so our  military forces and intelligence analysts are to be congratulated 
for  their exemplary work in discovering the whereabouts of Osama bin Laden  and 
dispatching him, while, at the same time, we insist that none of the so-called 
enhanced interrogation techniques had  anything to do with producing any of the 
information that helped lead to  his hiding place. But there is so much evidence 
to the contrary  (including the words of Leon Panetta, the director of the 
Central  Intelligence Agency) that this position is no longer seriously  
sustainable.

Torture is wrong for all sorts of reasons, from its affront to basic  human 
dignity to its violation of fundamental human rights. Making a  moral case is 
not difficult. The puzzling part is that so many people  insist on joining the 
moral case (torture is wrong) to the empirical  case (torture never works) even 
though the empirical case is  unpersuasive. We ought to be adult enough to 
accept the possibility that  a tool might exist that is wrong despite the fact 
that it is useful.

The claim that torture never works is a popular corruption of a more  serious 
claim, made by many professional interrogators, that torture  produces 
unreliable results. The unreliability argument rests on a  simple, and surely 
accurate, assessment of probability: if the pain or  horror is bad enough, the 
victim will say anything the torturer wants,  just to make it stop. The victim 
will sign a confession, make up a  story, do whatever it takes. “Yes, I robbed 
the bank,” the innocent man  admits after half a day of beating, and he fills in 
whatever details the  torturer supplies: the motive, the make of the getaway 
car, what have  you. If the purpose of the torture is simply to extract a 
confession,  and if the victim can be punished on the basis of the confession 
alone,  there is no check on the accuracy of the story. The torturer will thus  
extract plenty of guilty pleas, many or most of them from the innocent.
On the other hand, when the torture—the enhanced interrogation—is  intended not 
to adjudicate guilt but to extract information to lead to  the whereabouts of a 
kidnapped child, there is indeed an implicit check:  If the suspect is lying to 
make the torture stop, then the child will  not be where he tells the police to 
look. Whatever else may be said  about the threat by the Hesse police to torture 
Gäfgen, his confession  was truthful: The threat did work.

Surely the same is true when enhanced techniques are used to extract  
information that might lead to the uncovering of a terrorist plot—or the nom de 
guerre of the courier who carries messages back and forth to the leader of al 
Qaeda. If no courier of that nom de guerre is ever found, or if the safe houses 
the suspect describes turn out not  to exist, one can go back and try another 
way. The check on the  confession comes in the real world.

Again, let me emphasize, I am not defending the morality of torture,  or of 
other methods of enhanced interrogation. I am simply suggesting  that others 
who, like me, oppose the techniques should stop pretending  that nothing useful 
ever comes from them. One does not have to endorse  what the police did to 
Magnus Gäfgen to recognize that had he been  threatened with torture a little 
earlier, his 11-year-old victim might  be alive to this day; and one does not 
have to endorse whatever our own  interrogators may have done to recognize that 
had they not done it,  Osama bin Laden might still be safe in Abbottabad, 
plotting another  attack. Maybe had the police used gentler methods, Gäfgen 
would still  have confessed. Maybe information could have been obtained from 
terror  suspects through less forceful means: We should all hope so, but, as  
Panetta has said, we will never know.

What we do know is that information that has come from repugnant  methods has at 
times proved correct, and even useful. Torture can be  morally wrong and still 
sometimes work, a proposition that those of us  who are against it should be 
mature enough to admit.


Stephen L. Carter is the William Nelson Cromwell Professor of Law  at Yale, 
where he has taught since 1982. His seven nonfiction books  include God’s Name 
in Vain: The Wrongs. His first novel, The Emperor of Ocean Park(2002), spent 11 
weeks on The New York Times bestseller list. His twelfth book, The Violence of 
Peace: America’s Wars in the Age of Obama, was published by Beast Books in 
January.
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