A Rights Analysis Doesn't Work for Torture. Here's Why.

I believe that torture is wrong. Yes, even if you’re Jack Bauer and lives will be lost, it is still wrong for anyone to torture the bad guy. But why? In all the anti-torture arguments that I have seen, there is some kind of appeal to universal human rights. Everyone (they will tell you), American or not, combatant or not, has a right not to be tortured. And further, this is a right that cannot be waived. It is a universal human right. I appreciate what this argument is trying to do, but I find it inadequate. Of course there is such a thing as a right to be safe from torture. Everyone knows this. But equally, in real life, everyone knows that you can waive this right. Why do I say “everyone knows” this? We need look no further than the war-, spy-, and police stories that we find all over our culture. Popular wisdom is often revealed in our narratives, and that is true here. A person waives his right not to be tortured when he tortures someone else. Take the handy example of Jack Bauer. As we all know, the producers of 24 employ a double standard. If Jack (or another “good” guy or gal) is tortured, this proves how despicable the bad guys are. But if Jack brutalizes someone while interrogating them, he had to do it to save lives, and it is commendable. Whatever the good guys do, however evil it may be, is considered good, as long as their cause is just. But this is where things get interesting. Even though the producers commend Jack for his acts of brutality, the narrative rule of do-as-you-would-be-done-by is so strong that it still applies. His acts of cruelty, done from good motives or not, have moved him into a realm where he is eligible to be tortured by the bad guys. And, he is. Once he has crossed the line into the world of brutal, desperate measures … the same measures will be applied to him. The producers may not even realize it, but they are following this narrative rule. By the same token, we do not feel that injustice has been done to the bad guys that Jack torments, because the producers have taken care to first establish that by committing previous cruelties, they had already entered that brutal world themselves. This simple law makes it hard for me to sympathize with your average terrorist who is about to be unjustly tortured. If he comes from Saudi Arabia, for example, he is from a place where men routinely sexually torture women. (See the book Princess .) Has he done this himself? We can’t know for sure, of course, but the odds are good that he has. He probably had no idea (or interest in) how those poor women felt. If he is tortured unjustly by the Americans, he is about to find out. But now, behold the beauty of the non-rights analysis. On the non-rights analysis, we don’t need to invoke universal human rights when deciding what to do. We are forbidden to do certain things just because they are wrong. It doesn’t matter if the guy deserves it. It is still wrong for us to torture him, because torturing another sentient being is always wrong. A major comeuppance may be long overdue to the bad guy, but it is not the sort of thing that human beings such as ourselves can rightfully dish out. Ever. Voila. Torture is wrong, and there’s no need to invoke rights. Rights are slippery, and they will turn on you faster than you can say, “I need you to trust me.”