The Big Question:

Is torture justified? The question tends to provoke a "yes" or "no" answer. In a May 2004 ABC News/Washington Post poll, for example, 63 percent of respondents said that torture is always unacceptable. At the same time, U.S. entertainment--from 24 to the latest action-adventure flick--almost ubiquitously portrays torture as acceptable in extreme cases, and these portrayals do not generally inspire noticeable protest.

Context of the Contemporary Torture Debate:

After the attacks of September 11, 2001, the Bush administration began using "torture-lite" techniques against suspected terrorist detainees. These techniques have included waterboarding, sleep deprivation, long-term use of loud noises, forced nudity, and forced standing. At Abu Ghraib, U.S. military personnel and CIA interrogators were revealed to have gone several steps further, implementing forms of torture that involved lasting physical damage, sexual humiliation, and sometimes death.

History of Torture in the United States:

Torture has always played some role in federal, state, or local policy. Prior to the innovation of the penitentiary system in the early 19th century, forms of physical punishment that we now consider torture--flogging, to name the most prominent example--were extremely common. Torture by U.S. forces in wartime is not unheard of. And the persistent use of torture against low-income communities of color has also been well-documented; in the Chicago police department, for example, torture was routinely used until 1993.

Extraordinary Rendition:

In cases where the United States wishes to obtain information by torture but cannot or will not torture the detainee on its own, the practice of extraordinary rendition--in which a prisoner is extradited to a country that practices torture, and data from the confession provided to the U.S. government--has been used. The Clinton administration pioneered this practice, and there is good reason to believe that the Bush administration continues to employ it.

Moderate Physical Pressure, Torture-Lite, and Other Euphemisms:

In cases where government officials feel that torture is necessary but the political, legal, and foreign policy consequences seem excessive, one common practice is to simply redefine torture to exclude specific torture techniques. During the 1980s and 1990s, the Israeli government classified relatively mild torture techniques as "moderate physical pressure" rather than torture. (The Israeli Supreme Court overturned this policy in 1999.) The Bush administration is adopting a similar tack, reclassifying torture techniques such as waterboarding as "alternative interrogation procedures."

The "Ticking Bomb" Scenario:

The September 11 attacks brought the torture debate into sharp relief, both because of the Bush administration's counterterrorism policies and because it revealed the United States' vulnerability to terrorist attacks. One argument often used to defend torture describes a fictional scenario in which a massive weapon is set to go off, a prisoner in custody is known to have information on the attack that he refuses to give, and U.S. forces are faced with the question of whether to torture the prisoner or allowing untold millions to die.

Why the "Ticking Bomb" Scenario is Unpersuasive:

Certainly if millions of lives are at stake, the prisoner in question could be and would be tortured. It would not matter whether or not the practice of torture is illegal, because those doing the torturing would almost certainly be either pardoned or acquitted by jury nullification. When our criminal justice system makes allowances even for justifiable homicide, it is naive to believe that laws against torture would have any significance in a true "ticking bomb" scenario.

The Efficacy of Torture:

This leaves unaddressed the question of whether torture actually works. When the Bush administration used torture against Abu Zubaydah and Khalid Sheikh Mohammed, they didn't simply spill the beans; instead, they told interrogators what the thought the interrogators wanted to hear. And this drives at the heart of the argument against torture: Someone who is being tortured will happily say that grass is blue and the sky is green if he believes it'll end the torture, which makes it an unreliable interrogation method to say the least.

The Dangers of Legalizing Torture:

There are several good reasons not to legalize torture:

• In a context where torture has already been used against prisoners who have not even been suspected of terrorist affiliation (as in the case of Abu Ghraib), legalization of torture would result in routine, large-scale implementation.
• If the United States practices torture against its prisoners, other nations will be able to use torture with greater impunity.
• Torture invalidates confessions, creating "evidence" that cannot be used in a court of law. And as noted above, torture generates false leads that can derail ongoing investigations.

Conclusion:

The use of torture has not been adequately justified, but it would be excused in any of the extreme cases cited by torture proponents. Congress should pass a meaningful ban on all torture techniques, and the Department of Justice should aggressively investigate local police departments accused of torture for possible civil rights violations.