Why is Torture 'Different' and How 'Different' is it?

Abstract

Almost every serious commentator to address the moral and legal question of torture has taken for granted the proposition that the infliction of torture is a sufficiently grave evil to require a distinctly demanding moral scrutiny, one that categorically sets torture apart from other terrible things (including killing) that human beings do to one another. To paraphrase the Supreme Court's death penalty jurisprudence, most people agree that torture is different.Under the Eighth Amendment, the fact that death is does not rule out its application; it simply alters the relevant procedural standards. By contrast, many scholars believe torture should be entirely out of the question, and positive law gives effect to this view. This Article asks why. Why does torture merit its own moral category when killing does not?The Article first asks whether torture is in fact different at all. To this end, the Article sets out a novel hypothetical case in which a torturer acts in true self-defense. It thereby demonstrates that when circumstances are truly identical, and the characterization is accurate, the use of torture becomes no more troubling than the use of lethal force.The Article then turns to the ticking bomb scenario and asks what makes this case enough from genuine self-defense to engender such division among those who support the right to justifiable homicide. Having demonstrated that the distinction between torture and killing fails to account for the distinction, the Article develops a series of hypothetical examples that produce three criteria that will justify the use of torture and/or lethal force: First, torture or killing must be used against a wrongdoer; second, the force must be an effective means of saving innocents; and third, the status of the person to be killed or tortured as a wrongdoer must be closely tied to the utility of selecting him. It cannot, in other words, be a coincidence that the person whose torture will save lives also happens to be a wrongdoer.Unlike other work on the subject of torture, this Article does not attempt to persuade the reader of the legality, illegality, morality, or immorality of torture under particular circumstances. Instead, it attempts to explain the nature of the debate and shed light on its evident intractability. The Article concludes that disagreements over the morality of torture are likely to persist, because one can make a fairly persuasive case both for and against the satisfaction of the third criterion I unearth - the tightness of fit between a subject's wrongdoing and the utility of torturing him - in the case of the ticking bomb case.