Jonah Goldberg's Defence of Torture

Over at The Corner, Jonah attempts to defend torture, writing that:

I would take fifty lashes and some waterboarding over the death penalty any day of the week. Indeed, I'd take fifty lashes and waterboarding over fifty years in jail... Ask the folks on death row if they'd take a day of waterboarding in exchange for freedom.

And don't tell me the analogy doesn't work because the criminals are choosing torture of their free will. The terrorists in these hypotheticals choose torture too -- when they decide not to divulge inforrmation. Everyone agrees that torture or even coercion for reason not directly tied to pressing need should never be tolerated.

Now, I usually like and agree with Goldberg- unfortunately, there is an awful lot wrong with this argument- firstly, it cleverly attempts to argue consent on the part of those tortured, by analogy with prisoners who might prefer torture to lengthy prison terms or death. The analogy, however, is flawed- the terrorists Goldberg is speaking of are not being asked to exchange one form of punishment for another. Indeed, the terrorist who refuses to divulge is more akin to the criminal who refuses to plea bargain- but we do not thereby consider that such criminals consent to their punishment. Secondly, even in the case where a criminal might prefer torture to their sentence, it does not follow that they have consented to torture. The nature of penal justice is coercive, not consensual. Criminals do not consent to their sentences, except in extraordinary cases, and a preference for another punishment does not mean they consent to such a punishment. The substitution of one form of punishment for another does not magically create consent.

Perhaps more fundamentally, Goldberg confuses degree with kind- he implicitly argues that we can authorize any kind of punishment because we can justify, for some crimes, the punishment of death. Since death is the highest degree of punishment, all lesser punishments may be imposed. But the argument against torture is not that it is necessarily too much punishment, or out of proportion to the circumstances, but that it is, by its very nature, wrong. Telling us that there are justifiable punishments that are greater in degree does not address the argument, but rather assumes away the challenge torture critics make. It is also hard to see how the implications of this argument allow Goldberg to agree that "torture or even coercion for reason [sic] not directly tied to pressing need should never be tolerated." If indeed, torture can be a lesser and justifiable punishment, why should it not be substituted for prison sentences? I'd imagine a week of waterboarding would cost the government a great deal less than imprisoning someone for a decade- and if, as Goldberg suggests, the prisoners would prefer such a solution, what reason does he give to reject torture under such circumstances?

Update: Thanks for the link, Jonah! And welcome, NROniks! Feel free to take a look around. For those who just can't get enough on torture, I earlier tried to sort out torture vs. inhumane treatment, and made an attempt to find a basis for physical methods of interrogation that are not torture. I've also responded to Jonah in a new post on the subject.