The Unintended Consequences of Torture's Ineffectiveness

Abstract

Whether torture to extract true information—for example, military secrets or the location of a terrorist-planted bomb—is morally permissible and empirically effective is widely disputed. But many agree that such torture’s effectiveness is a necessary condition for its permissibility; if ineffective, then it is impermissible. Thus, the empirical issue has become crucial in deciding the moral issue. This Article addresses the empirical issue with a novel, non-empirical argument. Torture’s ineffectiveness not only ensures torture’s impermissibility but also exposes torture victims to criminal liability for any offenses they are tortured into committing. With torture as the most extreme and horrific form of coercion, seemingly if anyone deserves eligibility for a duress defense against criminal liability, it is torture victims. But ineffective torture is ineffective coercion, and ineffective coercion fails to sufficiently coerce to support a duress defense. Therefore, an unintended consequence of torture’s ineffectiveness is its inconsistency with and preclusion of torture victims’ eligibility for a duress defense. The inconsistency between the two establishes that at least one of them is false. Seeking to resolve the inconsistency, this Article considers several modifications of the empirical claim—including torture being merely generally ineffective or ineffective only under certain conditions—and alternative formulations of the duress defense. With none of these satisfactory, a dilemma arises: either close the door on torture victims’ eligibility for a duress defense (by maintaining torture’s ineffectiveness) or open the door on the permissibility of torture (by conceding torture’s effectiveness). Neither alternative may be palatable, but (to resolve the inconsistency) one must be chosen.