The Debate on Torture

War Against Virtual States

September 11 revealed what is likely to be a pervasive reality of twenty-first century life: what Philip Bobbit (in The Shield of Achilles) calls the rise of “virtual states,” not linked to any particular territory or traditional Westphalian state, which possess sufficient access to weapons of mass destruction to wage war against the United States-and, of course, other states-even as they are impervious to ordinary modes of military deterrence or retaliation.

Whatever divisions have been exposed by George W. Bush’s war against Iraq, few people deny the legitimacy of doing whatever we can to defeat virtual states such as al-Qaeda. A key question, however, is what we mean by the words “whatever we can.” Do they endorse the legitimacy of a war without legal or moral limits, where prudence alone constrains decision makers, or must the “war against terrorism” be conducted within recognized limits, even if this increases the risk of incidents such as September 11? This question takes on special import because of a debate that began shortly after the attacks: is it legitimate to torture suspected terrorists in order to gain information about future actions?

In good dialectical fashion, one should begin with the thesis. “Torture is . . . contrary to every relevant international law . . . . No other practice except slavery,” wrote Henry Shue almost a quarter century ago, “is so universally and unanimously condemned in law and human convention.” Article 7 of the International Covenant on Civil and Political Rights explicitly states that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment,” and Article 4.2 of the Covenant, just as explicitly, states that “[n]o derogation” from Article 7 is permitted.

As if this were not sufficient, in 1984 a United Nations conference drafted an equally categorical and even more specific “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” It entered into force in 1987 and has since been ratified by 130 states. Indeed, this is one of the handful of human rights treaties that the United States has signed. The United States fully accepted Article 2(2)’s provision that “[n]o exceptional circumstances whatsoever, [emphasis added] whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” What all this means, to use American constitutional language, is that not even the most compelling state interest can justify deviation from the prohibition: “no torture.”

We now turn to the antithesis, beginning with the fact that a number of parties to the Torture Convention have been accused of committing torture, while others have explicitly been found by courts to have engaged in the “cru...