More on Torture

In my previous post, John Hobbins helpfully pointed to an old post where the subject was discussed. David Luban of the Georgetown University Law Center, in the article I linked to previously, discussed what he terms the “classic paper on torture” by Henry Shue from 1978. Shue essentially held Hobbin’s view that there is a circumstance where torture is acceptable, an exception in that worse of circumstances, i.e. the ticking bomb scenario where torturing the enemy will gain information and save many, many more lives. He has since changed his mind. In what follows, I’m going to discuss and summarize Luban’s essay because, well, let’s face it, very few of you are actually going to sit down and read all of its excellent 36 pages.

There is a problem with arguing on the basis of scenarios where torture is okay as long as it saves lives — one that Shue himself states in his original paper: “there is a saying in jurisprudence that hard cases make bad law, and there might well be one in philosophy that artificial cases make bad ethics” (Shue, “Torture,” 141; my emphasis). But what exactly does Shue’s adage mean?

Luban writes that it could either of the following:

(1) By focusing on improbable artificial cases, theorists misdirect readers’ attention from genuine issues in the real world to specious issues.  They illicitly change the subject from important and authentic questions about the limits of legitimate interrogation in non-TBS cases to intuition-mongering about a tendentious hypothetical.

Or it might mean (emphasizing the “hard cases make bad law” trope):

(2) Policies have to do with rules, procedures, protocols, and laws.  Lawmakers
should build policies and rules around typical cases and ignore the rare hard
cases; and moralists should ignore the weird ones.  Thus, even if there were rare
cases of morally justifiable torture, procedures and laws should not accommodate
them by making exceptions for them (Luban, 23).

Luban has already approached the issue from the perspective of #1 (HERE – which is also worth reading and its shorter). But in his paper quoted above, he argued in both directions. Perspective #1, according to Luban, says nothing about the validity of torture in the sort of scenario that Hobbins would allow. And regarding Shue, he writes,

In the 1978 paper, Shue argues that very little follows from [perspective #1], because all he has conceded is “the permissibility of torture in a case just like this” – that is, a case in which all the conditions in the TBS [ticking bomb scenario] are satisfied.

I am not so sure.  The problem is that once one has conceded the permissibility of torture in a TBS case, one has apparently admitted that the prohibition on torture is not moral bedrock.

. . .

What if one knows only that the captive is a high-ranking terrorist who might know something useful, but maybe nothing that prevents any particular ticking bomb – but, on the other hand, the mistreatment is “only” sleep deprivation?  This, after all, is very likely the reality of U.S. torture. After making the initial concession, any prohibition on torture faces significant dialectical pressure toward balancing tests and the unwelcome consequentialist conclusion that interrogational torture can be justified whenever the expected benefits outweigh the expected costs (25).

And according to Luban, this is exactly the sort of situation (and its where the US seems to be right now) where perspective #2 becomes very important and he illustrates it using the Israeli Supreme Court:

Some who agree that the ban on torture must stand may still object to the idea of punishing someone who has, in the rare case of a TBS, done the right thing by violating the ban.  That is why most proponents of (2) advocate leaving the anti-torture rule in place but permitting accused torturers to plead necessity in the rare authentic TBS, or, alternatively, to receive a sentencing discount or even a pardon if they are convicted of the crime of torture.  The first of these was the strategy adopted by the Israeli Supreme Court in its momentous 1999 decision banning torture.  The Court allowed that under Israeli law an accused torturer could plead necessity; but when the Israeli security services argued that in that case the court should create an ex ante permission to torture in ticking bomb cases, the Court refused.  An ex ante permission is a “general administrative power” – a rule, not an exception – whereas the necessity defense concerns “an individual reacting to a given set of facts; it is an ad hoc endeavour, inreaction to a event. It is the result of an improvisation given the unpredictable character of the events” and is not to be turned into a rule.43 [Note 43: Israel Supreme Court, Judgment Concerning the Legality of the General Security Service’s Interrogation Methods, 38 I.L.M. 1471 (1999), para. 36.  Oren Gross has offered a similar argument.] The Court perceived the trap it would fall into if it turned the possibility of an ex post defense into an ex ante permission: the ex ante permission would be a rule, not an exception.  With or without the necessity defense, interpretation (2) allows us to acknowledge the justifiability of torture in the TBS while maintaining rigid prohibitions against torture and CID (26-27).

I think that this perspective is one that John Hobbins would agree with this based on what I’ve read in his single post from last May (though I may be wrong…I don’t know)

But at the same time, both Luban and Shue argue that it is possible to go beyond both perspectives #1 & #2:

In his 2005 paper, Shue goes beyond (1) and (2) and renounces his earlier concession that torture would be justifiable even in a genuine TBS case. His reason is that he now believes that the true TBS is not merely improbable, it is actually impossible. That is because, among the key conditions defining the TBS, are the requirement that it is an exceptional emergency measure and not an institutionalized practice, and the related point that the torturer is a conscientious, reluctant interrogator who uses torture only in the rare cases where all the TBS conditions are met. But a torturer must be competent; he must have training and the opportunity to practice; his training requires teachers, and his equipment must have been acquired in advance. There will be a doctor present, to insure that the subject of interrogation does not die. The torturer is not Jack Bauer but an apparatchik in a torture bureaucracy. A TBS without a torture bureaucracy is impossible.

To try to leave a constrained loophole for the competent “conscientious offender” is in fact to leave an expanding loophole for a bureaucracy of routinized torture, as I misguidedly did in the 1978 article.44 [Note 44: Shue, “Torture in Dreamland,” p. 238.  I offer similar arguments in “Liberalism, Torture, and the Ticking Bomb,” pp. 47-51.]

The “moderate” position on torture represented by (2) is, in Shue’s words, torture in dreamland. “So I now take the most moderate position on torture, the position nearest to
the middle of the road, feasible in the real world: never again.  Never, ever, exactly as
international law indisputably requires”(page 28, my emphasis).

There is much, much more, but this is getting extremely long and my point was to condense the length, not extend it. Much of it deals with deontological ethics in relation to consequentialism. And in my view, I find it very, very difficult to justify a Christian holding to anything other than deontological ethics.

Bibliography:

David Luban, “Liberalism, Torture, and the Ticking Bomb,” in Karen J. Greenberg, ed., The Torture Debate in America (Cambridge UP, 2006), pp. 55-68.

Luban, “Torture, American-Style,” Washington Post, Nov. 27, 2005, p. B1, available at http://www.washingtonpost.com/wp-dyn/content/article/2005/11/25/AR2005112501552.html.

Luban, “Unthinking the Ticking Bomb” (July 1, 2008). Georgetown Law. Georgetown Law Faculty Working Papers. Paper 68. http://lsr.nellco.org/georgetown/fwps/papers/683939

Henry Shue, “Torture,” Philosophy & Public Affairs 7 (1978): 124-43.

Shue, “Torture in Dreamland: Disposing of the Ticking Bomb,” Case Western Reserve
Journal of International Law 37
(2006): 231-39.

9 thoughts on “More on Torture

  1. Mike,

    Thanks for a careful and reasoned summary.

    Besides the link and the Alan Dershowitz quote I provide in the earlier thread, I would point out this article by Nick Cohen:

    http://www.guardian.co.uk/commentisfree/2006/nov/05/comment.terrorism

    The case Cohen discussed in 2006, that of Abu Qatada, remains on the docket. Go here:

    http://en.wikipedia.org/wiki/Abu_Qatada

    As of now, the British authorities have decided that Abu Qatada may be deported to Jordan after all, where the possibility that he will be tortured is difficult to deny.

    For the rest, I would point out that a commitment to “deontological ethics” does not solve a moral question like this.

    Just as in other difficult cases such as abortion and euthanasia, people on opposite sides of the issues are equally committed to the need for professional deontologies.

    In the case of the issue at hand, it seems to me that Dershowitz is more committed to having a workable deontology than his opponents are.

    1. I’d consider Cohen’s discussion less than relevant. It has more to do with a variety of legal problems in Britain than it does with the morality or legality of torture. His opening story isn’t a TBS. The man confessed under threat not torture. And since the official even considered the possibility of torture, Cohen then pretends that what we truly have is a TBS. I’d say that’s both nonsense and a red herring. In fact I would argued that its very, very likely that the officials knew, “The kidnappers of children aren’t brave men and the mere threat of a beating caused Gaefgen to confess that he had murdered Jakob and hidden his body in plastic bags under a jetty.

      By beginning with this little tale at the beginning (a tale that is irrelevant to the issue or torture) Cohen has his readers by the heart strings. This sort of distracting of the reader’s attention is exactly what we need to get away from if we’re ever going to have a reasonable discussion of the subject.

      And you’re right when you say, “For the rest, I would point out that a commitment to “deontological ethics” does not solve a moral question like this.

      But I again simply respond to quoting Shue:

      there is a saying in jurisprudence that hard cases make bad law, and there might well be one in philosophy that artificial cases make bad ethics.

      Abortion, euthanasia, torture, are all “hard cases” we would do well to not base our ethical theory on them any more than we should base it on artificial ones.

      I don’t know about your CIA/FBI friends that you talk to, but my friend, a friend who have been waterboarded is thoroughly against torture, as is a prominent Navy SEAL (this is the only time I’ve ever agreed with this guy – I grew up in MN and cannot stand him): http://www.huffingtonpost.com/2009/05/12/jesse-ventura-coleman-a-h_n_202629.html

      I can make the case from a variety of ethical theories. When it comes to consequentialism or utilitarianism, I can just as easily – if not more easily – make the case against torture.

  2. Mike,

    The following scenario Cohen presents caught my eye:

    “Wolfgang Daschner, deputy chief of police in Frankfurt-am-Main, gazed at Magnus Gaefgen, a law student and the prime suspect for the kidnapping of the 11-year-old son of a Rhineland banker. The policeman was certain he knew where the boy was, but Gaefgen refused to talk and had every reason to maintain his right to silence.

    “Daschner considered his options and wrote a memo. Gaefgen should be tortured, he said. ‘After being warned, he should be questioned again, under medical supervision, with the infliction of pain [no injuries].’ The kidnappers of children aren’t brave men and the mere threat of a beating caused Gaefgen to confess that he had murdered Jakob and hidden his body in plastic bags under a jetty.”

    There it is. These are hard questions, ones police wrestle with. I take it you are against torture of the kind Gaefgen was threatened with.

    Yet this kind of torture, on and off the books depending on what the books require, is not unusual in police interrogation. The threat of it, therefore, is credible.

    If, while discussing these matters with a police chief, she showed you a picture of a 5 year old child whose life was saved because of the use of non-life-threatening torture, how would you respond?

    1. I am against it.

      But I’m not against the threatening of it.

      But what I am against in Cohen’s jump from the real life threat of torture to Cohen’s imagination and hypothetical situation that never happened.

      What Cohen does in that article is actually what Luben criticizes in (1):

      (1) By focusing on improbable artificial cases, theorists misdirect readers’ attention from genuine issues in the real world to specious issues. They illicitly change the subject from important and authentic questions about the limits of legitimate interrogation in non-TBS cases to intuition-mongering about a tendentious hypothetical.

      I don’t consider your question as to how I would respond as a valid question about moral theory. For one, torture did not save the child only the threat of torture did and I’ve already said I have no problem with that.

      Secondly, I cannot and will not base my own view of ethics upon such artificial situations that more likely than not will never happen to me. I will not make the unthinkable, thinkable and normalize it. Your question is like asking me if I would rape a woman if it would prevent ten other women from being raped.

    2. Slavoj Zizik in in the NYT makes my point extremely well:

      http://www.nytimes.com/2007/03/24/opinion/24zizek.html

      “Some don’t find this troubling. The realistic counterargument goes: The war on terrorism is dirty, one is put in situations where the lives of thousands may depend on information we can get from our prisoners, and one must take extreme steps. As Alan Dershowitz of Harvard Law School puts it: “I’m not in favor of torture, but if you’re going to have it, it should damn well have court approval.” Well, if this is “honesty,” I think I’ll stick with hypocrisy.

      In a way, those who refuse to advocate torture outright but still accept it as a legitimate topic of debate are more dangerous than those who explicitly endorse it. Morality is never just a matter of individual conscience. It thrives only if it is sustained by what Hegel called “objective spirit,” the set of unwritten rules that form the background of every individual’s activity, telling us what is acceptable and what is unacceptable.

      For example, a clear sign of progress in Western society is that one does not need to argue against rape: it is “dogmatically” clear to everyone that rape is wrong. If someone were to advocate the legitimacy of rape, he would appear so ridiculous as to disqualify himself from any further consideration. And the same should hold for torture.”

  3. Thanks, Mike, for an illuminating conversation.

    I respect your point of view, and I imagine that your position fits your life-situation, though as you yourself seem to admit, a police-chief is not in a position to take a pass on the question I posed.

    She or he must establish rules that govern the use of interrogation techniques, while reserving the right to bypass those rules under dire circumstances.

    What is an artificial case in your life and mine is not an artificial case in the life of a police officer who, as Romans 13 has it, is God’s servant, an avenger who carries out God’s wrath on the wrongdoer.

    Not your favorite passage, I imagine. It’s not mine, either. Still, it expresses a truth which nonetheless needs to be put in perspective.

    The great NT scholar Ernst Kaesemann once did so, when he publicly stated in an official church setting that he could not accept Romans 13 as a part of God’s Word.

    No one objected to his statement (though of course Romans 13 remains part of the New Testament). How could they?

    They knew he had lost his daughter in Argentina, “disappeared” by the regime of that country.

    1. I would not advise the police chief to ponder that question on his own either. If the situation occurred I expect him to do what he thought right, but to merely meditate on these issues in the hypothetical normalizes and rationalizes decisions and situations that are and can never be consider rational.

      To quote Luben one more time:

      But if I would torture, that is not a fact about rationality, or justifiability, or, ultimately, about morality. It is a fact about me.

      And here is a fact about me: I could never pull the trigger in war. I wouldn’t be able to do it. Even if the man on the other end was 300 yards away. And likewise, that isn’t a fact about rationality, justifiability, or morality either.

      All I ask it that we not base our views of ethics and morality on the hypothetical and exceptional. It doesn’t make for good ethics.

  4. In short, you allow exceptions, if you yourself are not personally involved, to the “no torture” rule.

    And you locate the authority to make exceptions in the individual subject, not in a moral principle capable of challenge on rational grounds.

    Wow. I prefer a deontology.

    I agree with you that the use of torture can and must be exceptional. A last resort to be undertaken with extreme misgivings.

    I feel this way even more strongly about the use of lethal force, by police domestically or by armed forces internationally.

    But I don’t see why it is progress to think of the choice to go to war and the choice to do all kinds of despicable things in very dangerous situations as irrational and unjustifiable by their very nature.

    On the other hand, I am perfectly aware that reason, as Luther put it, is a whore for hire. That’s why Lenin could reply, without batting an eyelash, as follows.

    A group of American Quakers visited him not long after the Bolshevik Revolution drowned the opposition in blood.

    “Do the ends justify the means?” the Quakers asked.

    “If the ends do not justify them, what do?” replied Lenin.

    Whenever I rehearse that conversation, at least for a moment, I become a pacifist.

    1. And you locate the authority to make exceptions in the individual subject, not in a moral principle capable of challenge on rational grounds.

      I would also say that following the Israeli Supreme Court, that particular individual is answerable for his decision for better or worse – especially if it turns out it was the wrong decision. We cannot simply make the “exceptions” permissible by default. When we do that, they are no longer exceptions.

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