You need a lot more than a hunch to cross moral line of torture

But we might have to live with the fact information was gained by torture — if it means saving lives when there’s a plot to commit violence

The issue with regard to torture is not whether it is an evil, but whether it is a necessary evil. The depravity of inflicting terrible pain upon a helpless prisoner is self- evident. The case against it is not only one of morals, but efficacy. Information given up under torture might well have been obtained by less repugnant means, while the information to which torture uniquely holds the key is often unreliable: prisoners under torture, it is often observed, will say anything to make it stop.

But these are matters of empiricism.

To seek refuge behind the claim that “torture doesn’t work” is a moral evasion: for what if it did? Indeed, if torture never worked, it would seem strange that so many countries make use of it; possibly prisoners will say anything, including the truth.

Conversely, to seek instead the comfort of the absolute, declaring that torture can never be justified even if does work, is to leave oneself exposed to the classic “ticking time bomb” defence. If you knew with certainty that by the use of torture you could save thousands of lives, it would be morally obtuse to refuse, and condemn those thousands to death. And let us not pretend in this day and age that such a grotesque scenario is inconceivable.

The answer to the “ticking time bomb” defence is rather that you could not know such information with certainty — not before you’d actually tortured some poor soul. You might have the wrong guy. He might not talk. He might tell you a pack of lies. There might not be any ticking time bomb. It might have been stopped by other means. There are a hundred possibilities other than the one in which torture, and torture alone, yields the one indispensable piece of information without which the bomb would, without a doubt, have gone off. To cross as bright a moral line as torture, you need a lot more than a hunch.

But that is not the issue that confronts us in the controversy that has consumed Parliament for much of the past week: whether it is ever permissible to make use of information obtained by torture in other countries, as security forces were instructed in a recently unearthed government directive. To be clear, the general policy that Canadian security agents are, in the ordinary pursuit of their duties, forbidden to knowingly use evidence obtained by torture remains in effect. The directive instructs that “in exceptional circumstances,” where the threat is urgent and there is not time to verify that the information received was not obtained by torture, they may nevertheless make use of it. It still wouldn’t be admissible as evidence to convict someone in court, but it might be used, say, to evacuate a railway station.

Isn’t this just the “ticking time bomb” argument again? No. The fallacy there, remember, was that you could not know in advance whether by using torture you would find the ticking time bomb.

But in this case the situation is the reverse: you’ve been handed the ticking time bomb, and are wondering if torture was the source. And if it was, well, the torture has already occurred. Someone else has already crossed that bright line. They could not know in advance what information their prisoner possessed, and as such were not justified in using torture to obtain it; but since they have done so, you are now in a position to judge its value. You’d still want to be careful how you used it, for the reasons discussed. But would you really just ignore it altogether? Really?

Not convinced? Let’s leave the ticking time bomb scenarios out of it. Suppose, rather, we were talking about some life- saving medical advance. But suppose that this, too, was derived from torture. Actually, we do not need to suppose: exactly such a dilemma has confronted modern- day medical researchers with regard to the hideous human experiments carried out by the Nazis. These were almost unimaginably barbaric, and generally worthless: pseudo- scientific rubbish, performed with as little regard for scientific rigour as for human decency. Yet here and there, for example in the field of hypothermia, they seem to have yielded some genuinely useful data: information that could save lives. Are we obliged to discard that information altogether, because of its tainted provenance?

Of course, there’s an important difference in the two situations: the Nazis are no longer with us, whereas today’s practitioners of torture are very much in action, in countries around the world. It is legitimate to be concerned that Canada’s willingness to use the information they produce would, in effect, create a “demand” for torture ( though I rather doubt the supply would dry up in our absence) or indeed open the door to the sort of nod- and-wink outsourcing of brutality we have seen before. That would certainly be a concern if it were generally the practice to use such information, but it cannot be ruled out even in the more circumscribed policy the government has adopted.

Still, unless we are prepared to say that, having received word of a plot to, say, blow up a plane over Montreal tomorrow, we would do nothing with it on the off chance that it might have been obtained through torture, I think we have to live with that possibility.