"(In the United States) any interrogation technique, including the use of truth serum or even torture, is not prohibited. All that is prohibited is the introduction into evidence of the fruits of such techniques in a criminal trial against the person on whom the techniques were used. But the evidence could be used against that suspect in a non-criminal case - such as a deportation hearing - or against someone else."
When the unspeakable horrors of the Nazi concentration camps were revealed, C.S. Lewis wrote, in quite desperation:
"What was the sense in saying the enemy were in the wrong unless Right is a real thing which the Nazis at bottom knew as well as we did and ought to have practiced? If they had no notion of what we mean by Right, then, though we might still have had to fight them, we could no more have blamed them for that than for the color of their hair." (C.S. Lewis, Mere Christianity (New York: Macmillan, paperback edition, 1952).
Nor is torture, as "The Economist" misguidedly claims, a taboo.
According to the 2002 edition of the "Encyclopedia Britannica", taboos are "the prohibition of an action or the use of an object based on ritualistic distinctions of them either as being sacred and consecrated or as being dangerous, unclean, and accursed." Evidently, none of this applies to torture. On the contrary, torture - as opposed, for instance, to incest - is a universal, state-sanctioned behavior.
Amnesty International - who should know better - professed to have been shocked by the results of their own surveys:
"In preparing for its third international campaign to stop torture, Amnesty International conducted a survey of its research files on 195 countries and territories. The survey covered the period from the beginning of 1997 to mid-2000. Information on torture is usually concealed, and reports of torture are often hard to document, so the figures almost certainly underestimate its extent. The statistics are shocking. There were reports of torture or ill-treatment by state officials in more than 150 countries. In more than 70, they were widespread or persistent. In more than 80 countries, people reportedly died as a result."
Countries and regimes abstain from torture - or, more often, claim to do so - because such overt abstention is expedient. It is a form of global political correctness, a policy choice intended to demonstrate common values and to extract concessions or benefits from others. Giving up this efficient weapon in the law enforcement arsenal even in Damoclean circumstances is often rewarded with foreign direct investment, military aid, and other forms of support.
But such ethical magnanimity is a luxury in times of war, or when faced with a threat to innocent life. Even the courts of the most liberal societies sanctioned atrocities in extraordinary circumstances. Here the law conforms both with common sense and with formal, utilitarian, ethics.
II. Ethical Considerations
Rights - whether moral or legal - impose obligations or duties on third parties towards the right-holder. One has a right AGAINST other people and thus can prescribe to them certain obligatory behaviors and proscribe certain acts or omissions. Rights and duties are two sides of the same Janus-like ethical coin.
This duality confuses people. They often erroneously identify rights with their attendant duties or obligations, with the morally decent, or even with the morally permissible. One's rights inform other people how they MUST behave towards one - not how they SHOULD, or OUGHT to act morally. Moral behavior is not dependent on the existence of a right. Obligations are.
To complicate matters further, many apparently simple and straightforward rights are amalgams of more basic moral or legal principles. To treat such rights as unities is to mistreat them.
Take the right not to be tortured. It is a compendium of many distinct rights, among them: the right to bodily and mental integrity, the right to avoid self-incrimination, the right not to be pained, or killed, the right to save one's life (wrongly reduced merely to the right to self-defense), the right to prolong one's life (e.g., by receiving medical attention), and the right not to be forced to lie under duress.
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