All Commentary
Tuesday, May 10, 2011

Libertarianism and Torture

The atavistic State at its worst.

The killing of Osama bin Laden has emboldened advocates of torture as an anti-terrorism technique because the operation was supposedly facilitated by intelligence gathered from “enhanced interrogation.”

From this, some advocates conclude that the waterboarding of suspects at, say, the U.S. prison at Guantánamo Bay, Cuba, is not a necessary evil but a good. A May 6 syndicated column by Linda Chavez was headlined, “Reward, Don’t Punish CIA Interrogators.”

To the Chavezes in this debate, the Gitmo torturers are heroes, willing to dirty their hands with the “front line” work on which American lives depend.

Libertarians need to take a hard stand against torture.

A Simple Issue

Torture is often presented in complex or legalistic terms that cloud the issue. Consider a current example.

Pakistan is holding three of bin Laden’s wives and several of his children for interrogation.  That country’s government is notorious for torturing detainees, including women and children.

To the extent torture is discussed at all in connection with bin Laden’s family, the points raised would likely include:

At what age must a victim be before torture becomes acceptable?

Are family members of targeted people also fair game?

Will resulting information be useful or utterly unreliable?

But these questions are technicalities that should be addressed only after the fundamental issue is resolved: namely, is torture to elicit information ever proper?

Can Libertarians Ever Support Torture?

In fact, on occasion some libertarians have accepted torture as an acceptable method of gaining information. Reason commentator Radley Balko initially supported the torture of suspected terrorists. Balko later changed his mind on the grounds that “the government won’t use it competently…. [T]he government will abuse it, and … the government will find new, inappropriate contexts in which to use it.”

This is a rejection not of torture per se but rather of a refusal to cede that power to government. The anti-torture argument has to be stronger.

A useful starting point is to consider what conditions would have to be  present for torture to be compatible with libertarian theory.

Libertarianism declares that no moral or practical consideration outweighs the right of a peaceful individual to use his own body and property. When rights are breached, the accused is entitled to due process before remedies can be justly imposed, and those remedies must be proportional to the violation.

I can imagine only one scenario that even approaches the conditions necessary to justify torture: if a convicted kidnapper is known to have information that could save the life of his victim – perhaps the address of where the victim is starving to death. It is permissible to use lethal force against an attacker who directly and immediately threatens your life or that of an innocent third party. If the slow starvation of a kidnap victim can be is viewed as an ongoing immediate threat, then it is possible that using the lesser violence of torture to end the threat might also be justified.

But other conditions apply as well. Torture could only be used against the direct aggressor – not his family, friends, or associates. It could only occur after the accused had been judged criminally responsible in a fair manner; otherwise, he would remain innocent until proven guilty.

As a practical matter, however, the time required for due process would almost certainly result in the hypothetical victim starving to death. And so even in the most favorable scenario possible, the libertarian conditions for torture contradict each other and the justification breaks down.

The Current Reality of Torture

Thinking about the conditions for “justified torture” remain valuable, however, to highlight how unjustifiable torture is in the current context.

Consider the detainees at Gitmo. None of the conditions that might conceivably justify torture are present. They pose no imminent or direct threat to the lives of others. Indeed, the detainees have not even been charged with a lethal crime; nor have they received due process or been adjudicated as criminally guilty of anything. At most, some of them may possess information that could prove useful to one side of a political conflict. (Even this vague claim is highly doubtful as information extracted by torture is notoriously unreliable.)

However interesting it is to debate theoretical cases, no libertarian could possibly justify the current reality of torture without compromising libertarian principle. The torture of detainees is not an act of self-defense. It is the atavistic State and human nature at their worst.

Ultimately, however, I oppose torture not because I am libertarian, but  because I am a human being. Torture destroys everyone and everything decent it touches, including the torturer’s humanity.

  • Wendy McElroy is the author of over a dozen books on individualist feminism and libertarian history. Her upcoming book, "The Satoshi Revolution," applies the concepts of classical liberalism to cryptocurrency. She has been published by such diverse venues as Penn State to Penthouse, FEE to Marie Claire.