The torture debate has once again seeped into the public discourse in America, and it has us focusing once again on all the wrong issues. Suggestions have been made that information that Khalid Sheikh Mohammed provided while being water-boarded helped lead the CIA to bin Laden’s door. This has prompted the likes of John Yoo (author of the notorious torture memos signed by Jay Bybee) and former Attorney General Michael Mukasey, to argue that the case for water-boarding has been vindicated. Others, including Senator John McCain, have refuted the assertions that the trail to Bin Laden can be traced back to so-called “enhanced interrogation techniques.” In short, the debate is once again centering on the question of whether torture is effective.

First, it should be noted that the debate misconstrues the effectiveness argument. Few people would assert that torture can never produce so called “actionable intelligence.” The point, made extensively by FBI interrogators and other specialists in the field, is that torture produces less reliable intelligence than traditional (and lawful) methods of interrogation, since the victim will say anything to avoid the pain, some of it true but much of it not, creating the problem of trying to distinguish between fact and fiction. Moreover, a policy of torture creates longer term strategic costs in the effort to win over hearts and minds, which ultimately makes it counter-productive and ineffective from a broader perspective.

The key point, however, is that effectiveness is entirely beside the point. We should oppose and reject the use of torture even if it could be shown that it is effective. To his credit, John McCain also makes this argument. For those who do oppose torture, it is a profound mistake to be engaging in this debate about effectiveness. First of all, the arguments get reduced to the overly simplistic and binary question of whether it ever works, which is of course vulnerable to attack — just one example of torture producing one piece of accurate intelligence tends to undermine the entire position. Hence the debate today. But more importantly, engaging in this debate tends to suggest that if torture were found to be effective, then perhaps we might have to use it. But we would not, or should not, so why get trapped in this debate? We ought to stick to the real reasons for our objections.

So what are the real reasons for rejecting torture? The first is that it is abhorrent to both the principles underlying the rule of law, and our understanding of fundamental human rights — both of which are cornerstones in the foundation of our democracy. The common law rejected the practice of torture, and the admission of any evidence procured by torture, as early as the fifteenth century. It did so not only on the grounds that the information so obtained was inherently unreliable, but also because it was felt that the practice of torture would degrade all those who engaged in it, ultimately undermining the authority and effectiveness of the judicial system itself. And indeed, the continued use of torture by the Star Chamber in the sixteenth century became one of the central issues between the Crown and Parliament, with torture being cited as being “totally repugnant to the fundamental principles of English law… and repugnant to reason, justice, and humanity.” That view, of course, informed the drafting of the 8th Amendment of the U.S. Constitution.

With the development of human rights law in the twentieth century the prohibition against torture was embedded in international law conventions. This reflected the recognition that to torture another human being is not only to treat them as being less than human, and to destroy aspects of their physical and mental integrity, but it is also to degrade and undermine the humanity of those who perpetrate the torture. The U.S. was a harsh critic of regimes that engaged in torture in the past. The prohibition against torture has become one of only four or five “peremptory norms” in international law — norms that apply to all states and which cannot be derogated from by any state, for any reason. The U.S. helped to champion these norms and develop the treaty regimes that support them. The other peremptory norms include the prohibitions against genocide, slavery, crimes against humanity, and piracy. Would we really countenance a debate on the possible effectiveness of genocide or slavery?

The purported moral arguments trotted out in support of torture are in fact fallacious. In the context of the famous ticking time bomb hypothetical, it is argued that it is surely moral to torture one person in order to save the lives of thousands — that the right to life trumps the right to physical integrity and security of the person. The problem of course is that this is a false construct. We will virtually never be in a situation in which we know for certain that a person has specific information which, if obtained through torture, we know will definitely save the lives of a specific set of people. At most we will think that we know that the person might have information, which may help us save some undetermined lives. Like the CIA officials who “knew” that Abu Zoubayidah was a high-level al Qaeda operative, certain to have crucial information, which would absolutely save American lives, when they ordered him water-boarded 83 times – only to discover that he was never even a member of al Qaeda, and that he had no such information. As a matter of morality it is not justifiable to torture one person on the mere possibility that it might save the lives of some unknown people, and a hypothetical that will virtually never occur is no basis for a public policy.

In short, we should reject torture because it is contrary to the fundamental principles underlying the rule of law and our understanding of human rights. It is utterly inconsistent with the values that form the foundation of our democracy. It will degrade us as a people. The experience of countries that have in the past century adopted the use of torture for “national security” purposes, illustrate how the policy seeps into other areas of the judicial system, corroding the integrity of criminal justice and undermining the authority of the state. The proponents of torture are no doubt animated by the desire to protect the people and interests of the United States. What they fail to understand is that the strategic objective of terrorism is to gut our value system and destroy the foundation of our democracy. Engaging in torture only helps them achieve their aims. Frankly, even having the debate is harmful to our national interests. We cannot champion the rule of law and espouse the benefits of democracy while we argue at home about whether to torture people.

An article in The New York Times on Sunday described how recent letters to Congress from the Department of Justice (DoJ) explain that the government reserves the right to decide on a case-by-case basis what interrogation methods would violate international law standards against mistreatment of detainees. Specifically, the letters from the DoJ state that where harsher interrogation measures are “undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse” then such measures could be determined to be not “outrageous” or otherwise in violation of international standards.

In these letters the the government has focused on the language of Common Article 3 of the Geneva Conventions, which among other things prohibits “outrages upon the personal dignity” of detainees. President Bush issued an executive order Executive Order in July, 2007, which provided that the CIA would comply with specified domestic and international standards against harsh treatment of detainees, with particular reference to Common Article 3. Why the letters do not refer to the standards of the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as they have been implemented in U.S. law and incorporated in that form into the Executive Order, is somewhat mystifying.

In any event, the letters explain that for treatment “to rise to the level of an outrage” so as to be in violation of international standards, it “must be so deplorable that the reasonable observer would recognize it as something that should be universally condemned”. Prof. Sandy Levinson has already written a nice piece illustrating the tautological paradox inherent in that statement. An ex ante determination by the government that the conduct is permissible would strongly militate against observations that the conduct is, or even ought to be, “universally” condemned.

But the Supreme Court of Israel has already dealt with this issue of ex ante authority for harsher interrogation techniques (and the techniques, as described in the judgment, are far far less harsh than those the CIA is suspected of using today). The Court recognized the security needs of the state, and even examined the old ticking time bomb hypothetical, but it concluded that the government could find no ex ante authority for harsher interrogation practices in the principle of necessity (its full judgment is here). It left open the possibility of the legislature passing laws providing specific authority for such measures, though it noted that democracies have to fight with one hand tied behind their backs in order not to violate their own fundamental values. It also left open the ex post facto raising of necessity as a defence in the event of criminal prosecution. But it could not rely on its own determinations of neccessity to justify, and provide immunity for, harsher interrogation techniques.

That Israel, a country with much greater existential threats, and very real and persistent terrorist attacks upon its territory, can respond so forcefully to government claims that “necessity” requires ex ante authority for harsher interrogation techniques, should be instructive for the purposes of the debate in the U.S.