Lecture Outline Notes: Ethical Questions Concerning the Practice of Torture

1. What is torture?

Torture: The deliberate infliction of severe pain and suffering, with or without physical injury, on a currently helpless victim, either for its own sake (e.g., Sadistic Cruelty) or as an intended means to some desired end, such as:

• Extracting information from the victim (Interrogational Torture);
• Coercing some other behavior from the victim or from others;
• Intimidating the victim or others by example (Terroristic Torture, often employed by governments to quash dissent and resistance--e.g., Guatemala, 1960-1996);
• Punishment (Punitive Torture, often employed by governments for criminal deterrence and retribution, frequently combined with personal degradation and often tied to terroristic torture).

2. Torture is, of course, illegal according to both U.S. law and International law. (See: http://www.whitehouse.gov/the_press_office/EnsuringLawfulInterrogations/ )

I shall take it for granted that such forms of torture (and related humiliation and degradation of persons) as sadistic cruelty, terroristic torture, and punitive torture are not only illegal but also morally detestable, for reasons well brought out by Shue in his classic article on the subject.

Some, however, have argued that Interrogational Torture may be morally justified under certain conditions (though in political contexts they are careful to avoid using the word "torture", and instead devise euphemisms such as "enhanced interrogation" in order to get around the legal restrictions). We will therefore focus our discussion on Interrogational Torture.

Example: The CIA's employment of waterboarding in the years following 9/11. This is a technique which dates back to the Spanish Inquisition, and which the U.S. itself has historically explicitly condemned and prosecuted as torture and as a war crime.

The procedure involves immobilization and forced water inhalation and simulated drowning, with all the sensations, gag reflexes and panic associated with suffocation; this condition is sustained until the victim capitulates or medical crisis is imminent, in which case a break is allowed and then the process is repeated (183 times in one case). Here is a description (from ABCnews.go.com):

The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.

According to the sources, CIA officers who subjected themselves to the water boarding technique lasted an average of 14 seconds before caving in. They said al Qaeda's toughest prisoner, Khalid Sheik Mohammed, won the admiration of interrogators when he was able to last between two and two-and-a-half minutes before begging to confess.

"The person believes they are being killed, and as such, it really amounts to a mock execution, which is illegal under international law," said John Sifton of Human Rights Watch.

According to CIA sources, Ibn al Shaykh al Libbi, after two weeks of enhanced interrogation, made statements that were designed to tell the interrogators what they wanted to hear. Sources say Al Libbi had been subjected to each of the progressively harsher techniques in turn and finally broke after being water boarded and then left to stand naked in his cold cell overnight where he was doused with cold water at regular intervals.

His statements became part of the basis for the Bush administration claims that Iraq trained al Qaeda members to use biochemical weapons. Sources tell ABC that it was later established that al Libbi had no knowledge of such training or weapons and fabricated the statements because he was terrified of further harsh treatment.

3. Some Distinctions Within Interrogational Torture (Yielding Different Cases):

The nature of the victim:

• Innocent bystander who happens to possess useful information;
• Involved party who possesses useful information, though he is not directly responsible for any specific imminent threat;
• Involved party who possesses useful information and is directly responsible for a specific imminent threat (i.e., "Ticking Bomb" scenario).

The nature of the torturer's demand for compliance:

• Provide information needed to defuse a specific imminent threat ("Ticking Bomb" scenario);
• Provide information needed for more general security purposes, but not requiring a betrayal of comrades or of self (i.e., most deeply held values);
• Provide information needed for more general security purposes, which would involve a betrayal of comrades or of self (i.e., most deeply held values);

4. Question: Is Interrogational Torture ever morally justifiable in principle? If so, under what conditions? And if there are imaginable circumstances in which it is justifiable, does this imply that policy should be changed in order to allow it in the real world?

5. An Argument

It has seemed to some that torture must be justifiable in principle, given that killing is, and torture is at least often less bad than killing. They might argue as follows:

(i) If it is sometimes permissible to impose a certain great harm X on someone, then it must sometimes be permissible to impose a certain lesser harm Y on someone for comparably important ends.

(ii) It is sometimes permissible to kill a person (e.g., in self-defense, or in a just war), even though this amounts to the total destruction of the person.

(iii) Torture does not typically involve the total destruction of a person, and so is typically less harmful than killing.

(iv) Therefore, it is sometimes permissible to torture a person.

Is this argument logically valid? Is it sound?

Most of us accept premise ii. Premise iii is less clear, for reasons I'll discuss.

But even if premise iii is accepted, as seems plausible for at least many cases, the real problem lies with premise i, as Shue brings out.

The context of killing someone in self-defense is very different from the context of torturing someone to get information, and there may be features of the self-defense context that justify the greater harm of killing, but which are absent in the torture context; and there may be features in the torture context that make even lesser harms morally problematic, which aren't present in the self-defense context. It's not just about the degree of harm caused, but about all the relevant features of the situation in question.

I'll explain this in lecture, but the basic point has to do with the defenselessness of the victim in the torture case. Even if torture is a lesser harm than death, it may be degrading to the humanity in both the torturer and his victim in a way that even killing in self-defense is not. This seems to get at the distinctive sense of disgust most feel toward torture.

For these reasons (which I'll expand upon), we might reject premise i, leaving us free to reject the conclusion that torture is sometimes permissible, even if we accept the other premises.

6. One Possible Response:

In at least some cases of interrogational torture, it might be denied that the victim is defenseless:

• For one thing, if he is the person actually responsible for the 'ticking bomb' we are trying to stop, then he remains a threat in a sense: his harmful acts are still unfolding, even as we interrogate him, and by refusing to cooperate, he is allowing his own earlier harmful actions (setting up the bomb) to continue unfolding toward their culmination.
• Secondly, he does have a defense or escape: he can comply with the torturer's demands by giving over the relevant information, after which the torture will stop.

Does that Response Work?:

7. Regarding the first point: it is true that he remains a threat, but not in the sense that he is currently trying to do something here and now that will cause harm, which we are then preventing him from doing. Instead, he has already performed the relevant act (planting the bomb and setting it), and is simply refusing to cooperate with us in stopping it. If it does explode, then it will become true then that he has killed the people impacted by the bomb. So what we are trying to prevent, using torture, is not his presently doing something that kills people (as in self-defense), but his having killed people, since we can keep that description from applying if we can get the information and defuse the bomb.

Does that make a difference?

Hill claims that it does, since in order to prevent him from having killed people by having planted his bomb, we need to get him now positively to do something new: give us the information we demand. This contrasts with cases of self-defense, where we need simply stop him from doing some harmful action he is trying to perform here and now.

But why does this difference matter? Hill appeals to Foot's distinction between negative and positive duties, and argues that it is sometimes okay to inflict pain to force someone to comply with his negative duties not to harm, but it is not okay to inflict pain to force someone to comply with his positive duties to aid. Does Hill's argument work?

I'll suggest in lecture that although Hill's argument might work to show that interrogational torture is unjustified in cases where the victim is not the person responsible for the imminent threat we're trying to defuse, his argument doesn't work to rule out interrogational torture in the case of the actual bomb planter. The distinction between negative and positive duties doesn't help at all in that case. So notice that the distinctions we drew in section 3 of the HO are important here: it makes a difference which kind of case we're talking about.

8. Hill may still be right that there's something specially morally reprehensible about using pain infliction to try to make someone do something brand new here and now, such as providing us with information, as opposed to just using violence or pain infliction to thwart the harmful action he's trying to perform here and now, as in self-defense.

But what exactly is it? I'll address this in lecture.

There's also a related difference that can be brought out in Kantian terms. I'll bring this out in lecture as well.

9. Shue also raises worries about the earlier thought that the torture victim is not really defenseless after all, since he has a way out: he can always just comply with the demand and end the torture. Does the possibility of escaping torture through compliance really mean that he's not relevantly defenseless?

This brings in the second set of distinctions from section 3 of the HO. We'll go over this in lecture.

10. Where does this leave us, then? It's not clear that we've found any instances where interrogational torture would be morally justified. If you take all of the moral worries I've been raising very seriously, you might well draw the conclusion that torture is never justified: it always involves an intrinsically inappropriate, degrading and dehumanizing relation to another human being, which is serious enough to rule it out. But suppose you don't draw that conclusion. Then it's still true that the only potential justification with any real plausibility applies only to a very narrow range of cases, namely cases where:

• The victim not only possesses useful information, but is himself responsible for an imminent threat we are trying to prevent (a 'ticking bomb');
• The demand is simply for the information necessary to defuse that threat, so that compliance doesn't require deep self-betrayal;
• The torture will end as soon as the victim complies.

So at most the ticking bomb scenario might be thought to justify torture when all three of the conditions bulleted here are met. And of course we have to add another condition, which we've been taking for granted, but which needs to be recognized explicitly:

• The torture being employed is necessary for acquiring the relevant information.

Obviously if the same information could be obtained without torturing someone, and without doing something even more morally problematic, then that would be preferable and torture would be impermissible.

So for those who haven't already concluded that torture is always wrong for the reasons given earlier, the question now is: can torture in these very specific circumstances be morally justified, at least in principle?

11. Again, some people will think that it can, and there's at least some plausibility in that position. The only person being tortured, after all, is someone guilty of intending the murder of innocents with his bomb, and continuing to promote that intention by refusing to cooperate; and it is fully within his power to stop the torture simply by giving up that intention and cooperating with the prevention of the violence he has put in motion. These considerations may seem to override the moral considerations against torture, at least in this one very specific kind of case.

Suppose, then, for the sake of argument, that this is true. All that follows is that torture would be morally permissible in principle, if all of these conditions were in fact met. But what implications does that have for real world policy and choices?

The answer is: very little. There are several deep problems with translating this conclusion about what might in principle be justified into conclusions about warranted real world policy:

• First, there is the obvious problem of fallibility: how, in any given real case, do we know that all four conditions are really met? Some obvious questions:

• Does this individual really possess the desired information?
• Is he really directly responsible for the threat in question, and not just someone peripherally involved or even an innocent bystander?
• Is torture really necessary for getting the information, or might it be acquired in another way?
• How will the torturer know exactly when the victim has complied in full, telling everything he knows, so that the torture ends? If he makes a mistake about this and tortures past the point of actual compliance, then the victim has not been given a fair and effective escape after all.

These problems run very deep, since mistakes about all these things are overwhelmingly likely and common given the conditions under which suspects are typically gathered, without anything like due process and prior to trials and convictions. And it's hard to overestimate the moral catastrophe of torturing innocent people.

These problems also all interact to compound the difficulties, which I'll discuss.

• A related problem is how to know whether the information divulged is accurate or not. We'll discuss this in lecture. A good illustration of some of the problems is the case of al Libbi mentioned in the quote under section #2 above, where fabricated misinformation given under torture was hugely counterproductive. (For empirical evidence that coercive interrogations tend to lead to false confessions, see G.H. Gudjonsson, The Psychology of Interrogations and Confessions: A Handbook (Wiley and Sons, 2003).)

So there are deep and well-known doubts about whether torture even 'works', in the sense of yielding reliable information that could not have been acquired through other means. Many experts, such as forensic psychologists, flatly deny its efficacy, which means that any justification for it, even in principle, would fall apart: if it won't even prevent the harm we're trying to prevent, then it's simply pointless on top of all the moral concerns about it.

• Finally, there are worries about a variety of problems associated with actually institutionalizing torture practices.

o The inherent barbarity of torture practices means that they will tend to be done in secret, out of the public eye, and this makes effective oversight and control very difficult. Cf. the obscene dehumanizing practices that flourished in Abu Ghraib and elsewhere, which were not just a bizarre aberration by a few inherently bad people: they're actually predictable results of circumstances where there is radical power disparity, where the group in control regards the group under their control as 'other', where there is tension and fear and little oversight or personal accountability. Even ordinary people tend to behave very badly when placed in those circumstances. (Social psychologists have understood this for a long time, and it's well documented in the infamous Stanford Prison Experiment conducted by Philip Zimbardo in 1971.)

o Other worries involve slippery slope problems. As Shue points out, torture has a 'metastatic tendency', like cancer. Once you cross that line and begin down that path that takes torture to be an acceptable political or military or law enforcement tool, it's very hard to contain it and argue against not expanding its use to try to address further, equally pressing problems. And as its use expands, from the CIA to the local police, for example, that of course only exacerbates all the other problems we've just been talking about.

o In general, there is also just a worry that any state that employs torture loses its moral authority, and only feeds the hatred, resentment and self-righteousness of the terrorist groups we're fighting. Our own employment of dehumanizing treatment can serve as an excellent recruitment tool for our enemies, such as Al Qaeda, confirming our status in the eyes of potential recruits as an eternal and mortal enemy. And it puts our own service people at greater risk of suffering the same or worse treatment when they are captured.

12. For all these reasons, the most plausible conclusion I can come to is this. First, it's far from clear that torture is ever justifiable even in principle, for reasons given earlier. And second, even if it can be justified in principle, this would apply only to a very narrow, restricted range of cases, which may be quite rare. And third, even if that's true, it's far from clear that this translates into a justification for institutionalizing torture as a practice in the actual world, because actual world conditions are very far from the ideal conditions imagined in the philosopher's example of the ticking bomb, where there's perfect information, no possibility of error, perfect moral agents conducting the interrogation with perfect oversight, and so on. The problems with all the real world limitations are very deep and morally significant, and that seems to me to tell decisively against changing the law to permit torture.