Philosophy 220

1. Philosophy 220 The Moral Status of Torture

2. Some Definitions: Torture • Defining torture is also a challenge, in this instance because of a problem common to moral evaluation: the fact that strictly delimiting acts of torture from other similar acts is difficult, if not impossible to do. • Timmons cites the U.N. Convention on Torture as a definition (see p. 506). • Three implications: (1)Given the ambiguity highlighted above, much emphasis is given to the motivations of the person performing the act; (2)Some acts are clearly torture, some acts are clearly not, but there are some which straddle the line; (3) the definition restricts torture to acts done be individuals at the behest of state authority.

3. Shue, “Torture” • Shue bases his remarks on torture on the commonly recognized limitations on the exercise of war as highlighted in Just War Theory's concerns about Jus in Bello. • The concern to insulate noncombatants from the effects of war can be understood to serve a number of principles • Efficiency: helps to minimize human suffering. • Humaneness: only way to conduct war consistent with the requirement to respect human dignity. • Fairness: limits war only to the participants.

4. Why People Abhor Torture • Reflection on these principles helps understand the common revulsion against torture. • Even the weakest of these principles (fairness) seems violated by acts of torture, which can in no way be construed as a "fair fight." • Generally, all of these principles underscore the wrongness of assault upon the defenseless, which is precisely what torture embodies.

5. Are they all defenseless? • In response to this common argument against torture, some people reply that captured individuals who retain important information are not absolutely defenseless, in that they could defend themselves by surrendering that information (Shue calls this the "Constraint of Possible Compliance"). • This sort of argument clearly does not justify any torture, especially what Shue calls “Terroristic Torture,”torture used to frighten or control a population through intimidation.

6. Interrogational Torture • A more difficult case is that of Interrogational Torture (torture which aims at extracting information), which to the extent that it is limited to the pursuit of justifiably important information may satisfy the constraint of possible compliance. • Clearly, even if justified, IT does not permit any and all torture: few acts of torture fall clearly within the IT class and any sadism is forbidden.

7. Possible Compliance? • More substantively, the constraint of possible compliance significantly limits the application of torture. • Shue identifies three different types of individuals against whom torture may be used, each of which embodies a different relationship to the constraint. • Collaborator: not closely involved with the “group,”this person can readily comply and would thus seem to satisfy the constraint. • Innocent : have no information to give and thus cannot comply, torturing this person would never satisfy the constraint. • Committed: since complying would require this person to betray their ideals, there is no real chance for escape, and thus the constraint would not be satisfied.

8. Implications? • When we consider the range of people against whom torture may be directed, it becomes clear that the constraint of possible compliance authorizes a very narrow range of IT, essentially limiting it only to collaborators. • This in turn calls much IT into question as it is rare that collaborators would have the sort of information necessary to justify torturing them for it.

9. Final Assessment • On Shue’s analysis, most acts of torture will not be justified. • This includes the whole class of acts properly characterized as terroristic torture, which though perhaps formally justifiable in specific and extreme conditions, would in practice be virtually impossible to constrain appropriately. • Once begun, such acts would tend to become a permanent feature of the State's activities (see pp. 546-7). • Though it is certainly possible to conceive of an instance when IT would be justifiable (the ticking bomb), these circumstances would be so rare in fact that the argument in favor of IT certainly doesn't justify relaxing the legal (or moral) prohibitions against the activity.

10. Dershowitz, “Ticking Bomb?” • Dershowitz offers arguments in favor of the sort of IT characteristic of the “ticking bomb”scenario. • While we saw Shue would also authorize this sort of IT, Dershowitz offers a somewhat less constraining moral analysis and argues that existing laws should be changed to explicitly authorize torture in these sorts of circumstances.

11. Utilitarian Considerations • Dershowitz appeals to the tradition of utilitarianism to make his case for Ticking Bomb Torture. • We have already seen the intuitive appeal of this sort of consequentialist thinking in the case of war. If the torture of 1 person could save the lives of a hundred, it seems reasonable on consequentialist grounds to authorize it. • It's not only a numbers game. Pain is certainly a lesser harm than death.

12. Another View • An important counter-argument to this common-sense consequentialism comes from consequentialism itself. • The sort of justification appealed to on the last slide is best understood as an application of act-utilitarianism. Rule-utilitarians have argued against all torture on the basis of the claim that, such an act, once institutionalized would violate a consequentially justified rule. • The underlying concern is that if we start playing the “end justifies the means”game, anything will be permissible (the so-called “slippery slope”).

13. Appropriate Constraints • Dershowitz ultimately wants to undercut this sort of slippery slope argument, though he recognizes its force. • The way to do this, he thinks, is to consider the appropriate role for limiting rules. • The first step is to acknowledge that the infliction of pain if appropriately constrained, as in for example punishment, is morally unproblematic.

14. Three Ways • Relying on his experiences with the debate in Israel on the question, Dershowitz identifies a number of possible models for establishing appropriate constraints. • Twilight Zone: allow elements to practice torture outside of public knowledge or control. • Hypocritical Approach: turn a blind eye to torture. • Rule of Law: legally specify and constrain the circumstances and methods of possible acts of torture. • A fourth approach would be a blanket prohibition, but Dershowitz denies that anyone really advocates this.

15. Where is Shue? • On Dershowitz's schema, Shue would seem to be advocating something like the first of these options. • Dershowitz is critical of this standpoint because while it does satisfy our concerns for individual and national welfare, it is silent on concerns for civil liberties and the rule of law. • “In a democracy governed by the rule of law, we should never want our soldiers or our president to take any action that we deem wrong or illegal” (555c1).

16. The Lessons of History • To make the case for the third option, Dershowitz appeals to history, specifically the situation in England during the 16th and 17th centuries. • Then and there, torture was legally proscribed under specific conditions and tightly controlled by the central government. • Though this sort of system doesn’tprevent abuses or completely remove the negative social/aesthetic implications of torture, it is clearly easier to control than the twilight zone model.

17. Benefits of a Warrant System • In this third option, a judicial warrant would have to be secured for an act of torture to be permissible. • Dershowitz believes that such a system would limit the acts of torture to the minimum required, be maximally protective of civil rights, and specifically better protect the rights of possible victims of torture. • The appropriate analogy, he argues, is with search and seizure rules, which the courts have long argued are better protected by judges than by police officers.

18. One More Concern • Dershowitz closes his discussion by considering a final counter-argument from someone like Shue: that formalizing the constraints on torture in law risks establishing a precedent that would be difficult to constrain. • Dershowitz acknowledges the difficulty of precedent, and the accompanying social dangers, but insists that in a democracy it's better to have this conversation in advance than fly by the seat of our pants. • Guantanamo seems to bolster his case.