Foucault argues that since the Enlightenment, power has been exercised in quite different ways: not by the punishment of bodies, but through the disciplining of minds; not through dramatic acts that destroy us utterly, but through tiny daily pressures that encourage us to conform; not in a public square and periodically, but every day in homes, schools, factories, armies, hospitals. The end of torture as a state institution was coupled by the rise of other institutions, less violent and more subtly committed to moulding ‘docile bodies’.^[7]

But perhaps we have written off the Ancien Régime too quickly. In 2005, two Australian academics, Professor Mirko Bagaric and Julie Clarke, attracted widespread attention by arguing that torture is a ‘permissible’ and even a ‘moral’ action in certain circumstances.^[8] Within days, Peter Faris, one-time head of the now defunct National Crime Authority, was reported as supporting the ‘call’.^[9] And of course in the United States, arguments for the necessity of occasional and exceptional acts of torture or unlimited detention circulate regularly in the halls of government as well as in the pages of the law reviews. ^[10]

In good lawyerly fashion, Bagaric and Clarke discuss the question in abstractions entirely shorn of any social context. The necessity of torture is presented in purely theoretical terms. Torture, they say, is only justifiable where ‘it is used as an information-gathering technique to avert a grave risk’.^[11] Elsewhere, while not ruling out the torture of an ‘innocent person’ to obtain vital information, they focus on the archetypal hypothesis in which ‘torturing a wrongdoer … is the only means, due to the immediacy of the situation, to save the life of an innocent person’.^[12] Now they caveat this argument by conceding that ‘none of the recent high profile cases of torture appear to satisfy these criteria’.^[13] Well isn’t that nice to know. So the question is presented as a thought experiment designed to help us interrogate, so to speak, our moral instincts; to approach them in a reasoned rather than a merely emotional way. The thought experiment is meant to encourage us to think more clearly about a subject that is often, they tell us, a prey to fuzzy passions,^[14] and unfairly tainted by irrational and inappropriate ‘pejorative connotations’.^[15] Their stated goal is to normalise torture, to encourage us to see it as no different from any other tool of social policy.^[16]

But it is not remotely plausible to attempt to disassociate the article’s reflections on the legality of torture from a social context in which the use of torture by governments is in fact on the rise, and is openly being presented as legitimate and even necessary in the ‘post-9/11 world’: by government spokesmen and soldiers, television producers and talk‑show hosts. The top-rated television show ‘24’ has depicted no less than 67 instances of torture on the part of its heroes in its five years, and the untrammelled sovereignty exhibited by its counter-terrorist star, Jack Bauer, is beginning to exercise a considerable sway over the minds and imagination of many trainee soldiers and interrogators.^[17] The legitimacy of torture is undoubtedly back on the agenda.

Neither of course is there anything in the least fictional or coincidental about the discussion of torture at this moment in time. We are familiar with the dismal story of Abu Ghraib. But this was no isolated instance. In pursuit of the so-called ‘global war against terrorism’, the United States has not only been involved in cases of torture itself, but has routinely sent — the term used is ‘rendered’ — suspects to third countries in order that they might be tortured there. ^[18] So too allegations of the kind of practices and calculated cruelties that take place at Guantánamo Bay have surfaced recently with worrying regularity.^[19]

Above all, the United States Government has over the past several years clearly indicated its desire to claim an absolute sovereignty worthy of the Sun King. The Bush Administration insists on its right, as the executive, to act as it sees fit in the ‘war on terror’, including by the use of torture and unconstrained by either domestic or international law. In 2003, the Working Group Report on Detainee Interrogations in the Global War on Terrorism, authorised by then Secretary of Defense Rumsfeld, insisted that the President’s ‘ultimate authority’ in a time of self-proclaimed and self-defined war was not capable of curtailment by any laws, including United States statutes, against torture. Consequently, ‘the prohibition against torture must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief Authority’.^[20] Alberto Gonzales, at that time Legal Counsel to the White House, advised in 2002 that the ‘new paradigm’ of counter-terrorism ‘renders obsolete Geneva [Convention]’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions’.^[21] Alberto Gonzales was appointed United States Attorney‑General in 2005. In the celebrated words of Lord Steyn, a ‘legal black hole’^[22] has been created in two ways. On the one hand, unrestricted sovereignty is now claimed in interrogating terror suspects. On the other, the United States President has himself declared that the detainees at Guantánamo and elsewhere (over 70,000 people at last count) fall into no cognizable legal category and are therefore unprotected under international law.^[23] In the vacuum caused by the infinity of sovereignty and the nullity of its targets, anything is now possible.

Let us be clear about this: the only reason Bagaric and Clarke’s article was worth publishing — in the University of San Francisco Law Review, let alone in the opinion pages of The Age and the Sydney Morning Herald — is because the actions of the United States Government in particular has made the subject topical and relevant. Despite their protestations to the contrary, the argument for the legitimacy of torture matters not because it is an intriguing little exercise in moral philosophy, but because it intervenes directly into a real social context. Bagaric and Clarke propose a hypothetical case in which the extraction of information from a suspect must be accomplished urgently so as to avoid the execution of a hostage; Peter Faris refers to the imminent explosion of a bomb. The very same hypotheticals were used by Attorney‑General Gonzales to justify discarding the Geneva Convention. ‘The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against … civilians.’^[24] Yet as we know, this ‘torture memo’ encouraged the very practices that Bagaric and Clarke themselves judge ‘reprehensible’.^[25] These practices include not only Abu Ghraib,^[26] but a wide range of interrogation techniques through which, according to Amnesty International’s 2005 report, the US Government is even now engaging in torture dressed up in bureaucratic newspeak ‘in pursuit of unfettered executive power’.^[27] Thus a purely theoretical idea about torture gives credence to the very rhetoric that has far from theoretical consequences.

The authors dismiss this as a ‘slippery slope’ argument. But the use of arguments like those of Bagaric and Clarke to justify ever-expanding practices of torture is not a possibility but a fact, engineered, according to US Government sources, as part of ‘a calculated effort to create an atmosphere of legal ambiguity’.^[28] These Australian academics are seriously implicated in the creation of that atmosphere: that too is not just my fear or my opinion, but a fact. The context in which an argument is made is part of its meaning. This is not a complex point. One is responsible not only for one’s words but also for their inevitable and predictable effects.

Neither do the authors themselves sincerely believe that the argument they make is so limited and hypothetical. They attack the ‘misguided’, ‘alarmist’, ‘reflexive’, ‘absolutist’ and ‘short-sighted’ ‘moral indecency’ of our belief that torture is always wrong.^[29] They describe torture as suffering from ‘pejorative connotations’ [sic] and its critics as ‘illogical’ while their own defence of torture is ‘dispassionate’ and ‘analytical’.^[30] Poor Voltaire. He has been accused of many things, but rarely all at once. Whatever else we may say of Bagaric and Clarke, their argument is rich in emotion and rhetoric. True enough, they say that their defence of torture is so cautiously phrased that ‘a real-life situation where torture is justifiable [might] not eventuate’. But in the very next paragraph they conclude: ‘the argument in favour of torture in limited circumstances needs to be made because it will encourage the community to think more carefully about moral judgments we collectively hold that are the cause of an enormous amount of suffering in the world’.^[31] I wonder what hasty moral judgments they have in mind as being responsible for ‘an enormous amount of suffering’? The sole example they provide is our fanatical, woolly-headed prohibition of torture. So this is what their argument must mean: the prohibition against torture is doing our society enormous harm and causing enormous suffering not only in some hypothetical thought-world, but right now.

Even if we take Bagaric and Clarke’s very modest proposal for torture at face value, it is logically inseparable from the real-world practices they disavow. Torture by its very nature deals with uncertainty; ignorance is the problem that it claims to solve through the exercise of violence. Yet torture produces such exceptionally unreliable information that it is thought to be largely useless.^[32] All Western legal systems acknowledge this by excluding as unreliable the fruit of torture.^[33] But the authors blandly assert, in one short paragraph and on the basis of a single strangely unconvincing anecdote, that ‘the main benefit of torture is that it is an excellent means of gathering information. Humans have an intense desire to avoid pain … and most will comply with the demands of a torturer to avoid the pain.’^[34] They appear oblivious to how far short of convincing this ‘argument’ is; nor do they appear to grasp the difference between ‘compliance’ and ‘truth’. Let alone ‘evidence’. The central reason that Australian suspect Mamdouh Habib was finally released from US custody is that he had been tortured, and therefore any confession he made was legally inadmissible in any court.^[35] Having been tortured, Habib could never be put on trial. Bagaric and Clarke do not explain why they believe that torture produces good evidence. On the contrary, under current law, it produces no evidence at all. Bagaric, at least, apparently thinks that in such circumstances the rules of evidence are hopelessly outdated and irritatingly inconvenient;^[36] but that is at the very least an argument that would have to be made with some care, and Bagaric and Clarke do not bother to do so.

Now let us look at the problem of ignorance and uncertainty from the torturer’s point of view. A licensed torturer cannot know that a supposed terrorist (for example) is the only way to locate a bomb; or that there is a bomb; or that he will tell the truth under torture; or even that he is a terrorist. The torturer suspects these things or rather he says he knows these things, and of course he has every reason to say he knows these things, because that is the approach that justifies his actions. It is human nature to see the confused and ambiguous world in the way that is most convenient to us. Suppose our supposed terrorist denies knowing anything. Do we let him go or torture him some more? When exactly do we stop? When exactly do we believe what the victim is telling us when the justification of torture is precisely that we only believe him when he tells us what we want to know, without our already knowing it?

There is a paradox here that leads inexorably to the kind of grey areas or ‘slippery slope’ in the use of torture by interrogators for which Bagaric and Clarke attempt to deny all responsibility. Given the existence of criteria under which torture becomes acceptable, even the narrow criteria that Bagaric and Clarke provide, the pressure on someone in a volatile and violent situation to see his enemy in a way that will justify torture is irresistible. So the question is: how much useless torture is justifiable in these troubled times? The authors concede that their modest proposal may not lead to torture that saves a life. But they do not tell you the logical corollary: it must and will lead to torture, and therefore by their own reasoning it must and will lead to torture that does not save a life. I have seen no-one in the whole current debate over the role of torture in counter-terrorism even address this issue. Instead we have fallen victim to the Jack Bauer fallacy. Of the 67 instances of torture on ‘24’, Jack extracts 67 crucial pieces of life-saving information. But that is not our world and never, ever, will be.