In our world, it is duplicitous to describe torture, as Bagaric and Clarke do, at least in their newspaper articles, as ‘inflicting a relatively small level of harm on a wrongdoer’.^[37] The article, which appeared in the University of San Francisco Law Review, does not repeat this reasoning though the authors argue that once a threshold of justifiability has been reached ‘the higher the figure the more severe the forms of torture that are permissible.’^[38] In the first place, there seems to be a real lack of understanding as to how the physical aspects of torture work. How effective would a regulated, prescribed, and ‘relatively small’ dose of torture be? Torture is not like paying a parking fine. The terror and the threat of torture does not come from the pain by itself. Many of us can tolerate a finite dose of pain, even if it is severe: ask a woman what childbirth is like.^[39] There is surely no reason to think that highly motivated terrorists would find the suffering of a specific ‘level of harm’ impossible to bear. The power of torture, in most instances, comes instead from the promise that the torturer makes that the pain will not stop unless you talk and will get worse until you do. It is a logical contradiction to imagine that torture can be regulated, as Bagaric and Clarke seem to imagine, because it is part of its essence as torture that the victim is beyond protection and that resistance is futile. In addition, it is an essential and well-documented part of its psychology that the torturer is the sole arbitrator of life and death.^[40] The whole dynamic of torture involves the reduction of one party to pure power and the other to pure powerlessness. In short, and I believe this is a central point that the authors have not understood, torture gets people to talk (not, of course, to tell the truth, but certainly to talk: you will recall that the authors confuse ‘comply with the demands of a torture’ and ‘an excellent means of gathering information’^[41]) if and only if the torturer is sovereign. I suspect that a torturer-cum-bureaucrat is a contradiction in terms.

It is frankly appalling that so many writers are prepared to trivialise the very practice they advocate. Perhaps Bagaric and Clarke have read nothing about the nature of pain, memory, and fear.^[42] Perhaps they have not read a single thing about the experience of torture and its implications on those who suffer it and those around them.^[43] Torture is not simply pain. It is an experience of absolute powerlessness that reduces the victim, in their own eyes as well as their torturer’s, to an animal, a bare life without will or dignity of any kind.^[44] It is the destruction of identity. Torture is rape just as rape is torture. It is not something to shrug off or even, most of the time, to get over.

Neither should we limit our analysis to the impact of torture on a single individual during a single finite emergency, a limiting of the actual costs and effects of torture that Bagaric and Clarke engage in quite explicitly.^[45] In the world we live in and in which Bagaric and Clarke’s argument actually matters, torture is never about the emergency rescue of an innocent life. It is used to extract a wide range of information about the functioning of many outlaw groups. But because of the inherent unreliability of its evidence, this is not its main purpose. Torture is used to punish and humiliate dissidents, terrorists, and members of ethnic minorities. And it is used as a calibrated dose of cruelty through which to terrorise the whole community to which they belong.^[46] Just as in the case of Damiens, torture is a demonstration of what the state can do to you and what it can get you to do. The effect is to create a generalised fear about the infinite and random power of the state to destroy lives, and an intense sense of vulnerability in victim populations.

We need to think about the effects of torture not merely on the bodies that suffer pain but on the families and communities around them who live under its constant and unavoidable shadow. Torture affects whole societies: it terrorises them and ultimately, as we saw in Voltaire’s Europe, the powerlessness it instils shifts from passivity to rage. The turning point in the lives of many Al Qai’da operatives was their imprisonment and torture in Egyptian, Syrian, and other Middle Eastern prisons: this same Egypt to which the United States still ‘renders’ suspects in order to soften them up.^[47] Torture is in real danger of producing terrorists: whole families and villages of them. That is why the prisoners in Guantánamo Bay — according to the Secretary-General of Amnesty International, part of the ‘gulag of our times’^[48] — are proving to be an increasingly insoluble problem for the US, and many fear now that they may never be able to be released. How can they be? Bystanders or warriors initially, they are much greater risks to us now.

To these real and far-reaching consequences, which our society would have to understand, accept, and somehow combat if we were ever to accept Bagaric and Clarke’s argument, the authors have paid no attention at all.