Torture is barbaric, and a state should not be barbaric. To treat someone barbarically erodes the legitimacy of the state. Torture inflicted by the state in circumstances in which it considers that torture is justifiable involves something more significant than the outcome of a consequentialist calculus and more significant than the defeat of a prima facie right to be free from torture. It fundamentally disrespects the humanity of the person tortured. Torture is wrong for similar reasons that deliberate military targeting of civilian populations, or summary execution of an unarmed captive soldier, is wrong. Even if it might provide a consequentialist benefit for a group under threat, such barbarism disrespects the humanity of its victims and is therefore outside the proper function of a state and its agents. Accordingly, there should be, and under public international law is, an absolute, non-defeasible and non-derogable right to be free from torture, which attaches to all people regardless of their crimes and means that, in all circumstances, the state can never morally justify torture.
(Ben Juratowitch, "Torture Is Always Wrong," Public Affairs Quarterly 22 [April 2008]: 81-90, at 88 [endnote omitted])
Note from KBJ: This, with all due respect, is a flagrant non sequitur. That torture is barbaric, or that it "disrespects the humanity of the person tortured" (it's not clear whether these amount to the same thing), shows only that torture is intrinsically wrong, i.e., wrong in and of itself, independently of its consequences. It does not show that torture is absolutely wrong. For consider: Victims of terrorists, no less than terrorists, possess "humanity" and can be treated barbarically. If we have a terrorist in our custody and can extract information from him or her via torture, but choose not to do so, we are allowing innocent people to be killed. Is that not barbaric? Are we not disrespecting their humanity? This is not to say that there is no presumption against torture. It is to say that the presumption against torture is rebuttable.
Suppose terrorists have captured Ben Juratowitch and his family and are going to torture and kill them at a designated time. Authorities are informed of the plan, but they don't know where the victims are located. One of the terrorists is captured. He won't talk. Authorities believe that they can get him to talk if they torture him. According to Juratowitch, it would be wrong to torture him. Authorities must (morally) allow Juratowitch and his family to be tortured and killed. Suppose authorities are allowed to talk to Juratowitch by telephone. They ask him what they should do. Juratowitch must, to be consistent, tell them not to torture. Perhaps Juratowitch will accept these implications. I, for one, do not. I assume 99.9% of people do not.
Note 2 from KBJ: Here is the dialogue I imagine:
Authorities: "Mr Juratowitch? How are you? Is your family okay?"
Juratowitch: "Yes, we're fine. So far. But the terrorists have told us that we're going to be tortured and killed. I'm worried about my kids."
Authorities: "Stay composed. We've apprehended one of the terrorists. He won't talk, but we think we can make him disclose your location by torturing him. Obviously, we'll start with lesser forms of torture, such as ripping out his fingernails, and only increase the pain if he continues to balk. What I want to know from you is whether we should go ahead with this."
Juratowitch: "No! You mustn't torture him. I refuse to authorize it. After all, he's a human being, and, however guilty he may be, and however much harm will occur if he is not tortured, his humanity must not be disrespected. It would be barbaric to inflict severe pain on him merely to save my family and me, or indeed any number of innocent people."
Authorities: "Okay. We'll hang on to the terrorist. Let us know if you change your mind."
It will not do for Juratowitch to say that this scenario is fanciful. He says that torture is wrong "in all circumstances." That means it's wrong in all actual circumstances and in all merely hypothetical circumstances, including the circumstances I described. I don't rule out the possibility of him biting the bullet and saying that he would, in fact, refuse to authorize the torture. I do, however, think it highly improbable that he would refuse. You have to wonder about a moral position that its proponents cannot accept, when they and those near and dear to them get burned by it.
Keith Burgess-Jackson, J.D., Ph.D. 