Torture: When the Unthinkable Is Morally Permissible

Torture: When the Unthinkable Is Morally Permissible. By Mirko Bagaric and Julie Clarke. Albany: State University of New York Press, 2007. 114 pages. $53.50 ($17.95 paper). This slim volume is essentially an extended commentary that builds on a controversial op-ed piece the authors published in the Australian newspapers The Age and The Sydney Morning Herald in May 2005. In that piece, the authors, both professors of law in Australia, argued "the belief that torture is always wrong is ... misguided....It is this type of absolutist and shortsighted rhetoric that lies at the core of many distorted moral judgments...." As the tone and placement of the original article would indicate, this book is more a work of strident advocacy than of cool and dispassionate analysis, although to be sure, it touches on all the relevant legal and philosophical issues that bear on the question. The authors begin by acknowledging the absolute legal prohibition on torture in international law and arguing that this restriction is precisely what should be changed. They argue for carving out a narrow exception that would allow a utilitarian calculus to permit torture in cases where lives are at risk, the potential harm of an attack is immediate, there are no other possible means of obtaining information within the time available, the person to be tortured has committed a significant level of wrongdoing, and there is high likelihood that he or she does possess relevant information that, if obtained, will prevent the loss of life. Bagaric and Clarke note that, despite the prohibitions on torture, it in fact is widely practiced around the world, even by nations that would most stridently condemn it publicly. In light of that reality, the authors argue, it would be better if torture were legalized (in the very narrow range of cases they have in mind). Further, having legalized it, they posit there should be a prior-review legal mechanism for issuing a "torture warrant" as a much preferable alternative to retrospective decisions regarding torture already committed. The short chapters that follow review the main counterarguments to the legalization proposal. The first is the "slippery slope" objection--allowing practice A, which might be morally acceptable, will eventually lead because of either logic or social acceptance to allowing practice B, which is clearly morally unacceptable. The consequence of a slippery slope argument is that one ought not, therefore, to allow A in the first place. Bagaric and Clarke reject this objection on the grounds that it is inherently speculative. The second objection is that acceptance of torture will lead to a general dehumanization of the society that practices it. This critique the authors dismiss on the grounds that it focuses too narrowly on one relationship---between torturer and tortured--to the neglect of the larger framework of affected parties that include the innocents to be saved as a result of information extracted through the use of torture. Discussion of this objection posits that torture is ineffective and the information so extracted is inherently unreliable. The authors claim to the contrary that for the very narrowly focused type of torture they have in mind--where the tortured person is believed to a high degree of certainty to possess specific and relevant information about a particular event--it is indeed effective. …