Saturday, January 20, 2018
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Torture and the Innocent

guantanamoby Jacob G. Hornberger

One of the main arguments made by pro-torture Americans is that the information acquired by torture can lead to important information that can save the lives of innocent people. Their argument is a classic example of the old maxim, “The end justifies the means.”

But even if we were to accept that utilitarian argument for torture, doesn’t it necessarily involve an important assumption? Doesn’t it assume that the person being tortured is guilty of the suspected offense or possesses the important information that is sought from him?

It seems that the pro-torture crowd never considers the discomforting possibility that the person being torture is innocent and has no relevant information to divulge at all?

What happens if a suspect tells the torturer that he is innocent and doesn’t have the information the torturer is seeking?

One possibility is that the torturer will say, “Well, I believe you. I’m not going to torture you. I’m going to go ahead and release you.”

That outcome, however, is highly unlikely, especially since many people who are guilty of the offense or who do possess the information that is being sought, initially deny culpability.

It’s much more likely that the torturer is going to reject the suspect’s claim of innocence and begin torturing him. The torturer’s mindset is that the suspect wouldn’t be there being tortured if he were truly innocent. After all, the torturer feels, the military and the CIA would never bring innocent people to be tortured.

During the first few bouts of torture, the innocent person will continue to claim he’s innocent. But to the torturer, that will simply mean that the torture hasn’t been tough enough. He’ll ramp up the torture to make the person talk.

So, how long does this go on? It could actually go on for a long time. One inmate currently at Guantanamo was waterboarded 83 times. Was that because the torturer felt that the victim wasn’t forthcoming after 82 times? How many times would he waterboard a person who turned out to be totally innocent — 183 times? 283 times? When would he stop? Would he stop?

Could the government, including the military and the CIA, make a mistake by targeting an innocent person for torture? Of course. How often do we hear about government officials executing people for crimes they didn’t commit?

The solution to this problem is not to get better screeners before torturing people or even to have a system of pre-torture judicial review, where judges issue torture warrants based on probable cause, as some in the pro-torture crowd advocate.

The solution is to reject the “end justifies the means” mindset. Moral principles are immutable. We need to prohibit torture under all circumstances. Hopefully, even the pro-torture crowd would not countenance things like rape or murder of a suspect’s family members, even if those means were successful in inducing people to confess or talk. It should be no different with torture.

Jacob Hornberger is founder and president of the Future of Freedom Foundation.

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