As I noted a few days ago, Christopher Kutz argues that the anti-torture norm is (or might be) dead. Another way of putting this claim is that the longstanding taboo against torture has lapsed. A practice is taboo if not only it is forbidden but open debate about it is forbidden. Anyone who challenges the taboo will be regarded as tainted or contaminated, as outside the community. Contrary to what we like to think, hundreds of taboos flourish in American society, as many I’m sure as in any of the tribal societies studied by early anthropologists from which the term was adopted. Our taboos surround not only religion, but also race, gender relations, and the treatment of children. Free speech is firmly entrenched in the law but anyone who thinks that one can speak freely about these topics without risking significant social sanctions hasn’t been paying attention. Taboos constantly change (many sexual taboos have lapsed, just in the last few decades), but while they prevail they are extremely powerful.
The process by which taboos break down is mysterious; Kutz doesn’t really explain why the torture taboo has eroded if it has. At least part of the explanation must lie with technological change that causes people to question traditional prohibitions. The invention of modern forms of birth control made many of the taboos surrounding sex, which may at some earlier time have been broadly functional (in the sense of protecting people from the burdens of unwanted children or quelling social conflict), seem nonsensical. Yet the erosion of those taboos (not yet complete) was complicated. People had to be motivated to challenge the taboos and endure social sanctions. Sexual desire is a potent motivation, and eventually the arguments could not be ignored. But if there is no strong incentive to challenge taboos–as may be the case with taboos that don’t ban behavioral anyone really wants to engage in (like cannibalism)–then they are likely to persist.
If the torture taboo is eroding, then the explanation must be different from change in technology. The torture technologies used by the CIA are decades, even hundreds of years, old. And as is common with many taboos, the prohibition was never complete–U.S. government has committed torture before (just as incest takes place despite the incest taboo); what’s new is that torture is openly discussed as a legitimate policy option, by some people. In the 1990s and earlier, the U.S. engaged in torture through proxies, and no one talked about torture used by American combat soldiers in wartime. What seems to have happened is that an unusual configuration of events–the 9/11 attack, the earlier enactment of torture laws that forced the CIA to seek legal cover through a Justice Department opinion, relatively new norms of government openness, and so on–forced torture out into the open, where it could no longer be ignored.
You can see the persistent taboo-like character of torture in the debates surrounding the CIA’s interrogation practices. Many of the critics feel compelled both to argue against torture (“it doesn’t work,” “it violates our values”), and to argue that this argument is unnecessary because torture is plainly wrong or off the table (“it’s not who we are”). But the mere making of the first argument, which often requires elaborate claims about how institutions work, contradicts the second. Torture (unlike, say, cannibalism or incest) then becomes a matter of debate, perhaps like any other policy. The real force of the much-derided ticking time-bomb hypothetical is not that it provides a policy justification for institutionalized torture, but that it explodes the taboo. If you agree that torture may be acceptable in this setting, then you can argue against its expansion to less extreme scenarios only by making complicated empirical and institutional arguments that can be debated by people who have different intuitions.
I wonder whether the prosecutions that the CIA’s critics desire would have the perverse effect, even if they are successful, of further unraveling the taboo. In a court of law, defense lawyers will argue that their clients acted reasonably, and to do so, they will elicit testimony that some interrogation practices that amount to torture are actually effective. Whether or not this testimony is persuasive, the mere fact that it is introduced and debated will help remove torture from the realm of the taboo. Like so many (actually nearly all) police practices, there is just no reliable evidence of efficacy, in one direction or the other, and in such cases courts tend to defer to the judgment of experts. Whatever the outcome of the prosecutions, the efficacy of torture becomes merely an empirical question, deserving of further study perhaps, one about which reasonable people may differ–in which case it can’t be taboo.
This is, I think, what happened in the gay marriage cases, which helped destroy another taboo that until recently was extremely powerful. The importance of the evidence introduced in those cases was not so much that it supported the case for same-sex marriage but that it showed the question of same-sex marriage is an empirical one. Once empirical doubts are recognized, they cannot displace powerful equality norms.