Torture, Rights, & Supreme Emergencies

Hobyahs2smallA right isn’t just something that’s good, something to be maximized or traded. That’s the role of an interest. The constraints on behavior that a right imposes, if it is to be significant at all, must be inviolable in a way constraints imposed by mere interests are not. But this saves the significance of rights at the cost of their existence; if the constraints imposed by rights are inviolable, then there just aren’t any rights.

The Sen­ate Intel­li­gence com­mit­tee released their report this week on the CIA’s use of “enhanced inter­ro­ga­tion tech­niques.”  Unsur­pris­ing­ly, the tech­niques used include some pret­ty repug­nant things.  Let’s take water-board­ing as an exam­ple.

When one is water-board­ed, one is made to feel as if one is drown­ing and to expe­ri­ence the kind of pan­ic that this entails.  This sort of thing would not be jus­ti­fied as a means of pun­ish­ing mere­ly sus­pect­ed ter­ror­ists or asso­ciates of ter­ror­ists, nor as a means of deter­ring would-be ter­ror­ists.  Even if it were jus­ti­fied for these pur­pos­es, these are not the pur­pos­es for which it is used.

It has been used to gath­er infor­ma­tion. There’s strong evi­dence that infor­ma­tion gath­ered in this way is not reli­able, but for the sake of dis­cus­sion, let’s assume that such infor­ma­tion is use­ful. Let’s say, to use a tried and true thought exper­i­ment, that:

A ter­ror­ist has plant­ed a tick­ing nuclear time bomb in Chica­go, we know not where. Unfor­tu­nate­ly, we’ve only been able to appre­hend an asso­ciate of the ter­ror­ist.

We have very good rea­son to believe that this asso­ciate knows the loca­tion of the time bomb. How­ev­er, the asso­ciate is unwill­ing to share that infor­ma­tion for some rea­son.  We are now con­sid­er­ing the use of water-board­ing to extract the infor­ma­tion and save mil­lions of lives.

If the police were to water-board a friend of a pick-pock­et because he knows where the pick-pock­et is hid­ing-out but is unwill­ing to tell the police, the out­cry over the friend’s vio­lat­ed rights would be deaf­en­ing.  And, indeed, many peo­ple object uni­ver­sal­ly and as a mat­ter of prin­ci­ple to the use of tech­niques like this.  How­ev­er, the posi­tion that it would be moral­ly imper­mis­si­ble to tor­ture, and let’s be hon­est and call water-board­ing what it is, an inno­cent per­son no mat­ter what the con­se­quences is implau­si­ble.

It is instruc­tive to explore the log­i­cal con­tor­tions that defend­ers of rights qua invi­o­lable con­straints put them­selves through to avoid this implau­si­ble com­mit­ment of their view.  Michael Walz­er argues that there are some rules of war that are invi­o­lable; that it is always moral­ly imper­mis­si­ble, for exam­ple, to inten­tion­al­ly tar­get non-com­bat­ants.  Applied to our case, his rea­son­ing looks like this:

Should I wager this deter­mi­nate crime (tor­tur­ing an inno­cent per­son) against that immea­sur­able evil (the death of mil­lions of inno­cent peo­ple)? Obvi­ous­ly, if there is some oth­er way of avoid­ing the evil or even a rea­son­able chance of anoth­er way, I must wager dif­fer­ent­ly or else­where.  But I can nev­er hope to be sure; a wager is not an exper­i­ment.  Even if I wager and win, it is still pos­si­ble that I was wrong, that my crime was unnec­es­sary to vic­to­ry (avoid­ing the death of mil­lions).  But I can argue that I stud­ied the case as close­ly as I was able, took the best advice I could find, sought out avail­able alter­na­tives.  And if all of this is true, and my per­cep­tion of the evil and immi­nent dan­ger is not hys­ter­i­cal or self-serv­ing, then sure­ly I must wager.  There is no option; the risk oth­er­wise is too great. My own action is deter­mi­nate, of course, only as to its direct con­se­quences, while the rule that bars such acts if found­ed on a con­cep­tion of rights that tran­scends all imme­di­ate con­sid­er­a­tions. It aris­es out of our com­mon his­to­ry; it hold the key to our com­mon future.  But I dare say that our his­to­ry will be nul­li­fied and our future con­demned unless I accept the bur­dens of crim­i­nal­i­ty here and now. (Walz­er 2006,259–60)

In one breath, Walz­er asserts that there is no option, that the crime (and by crime he does not nec­es­sar­i­ly mean legal crime but rather infrac­tion, rights vio­la­tion) must be com­mit­ted because the alter­na­tive is too ter­ri­ble, while in the next mak­ing it clear that a right is not some­thing that comes and goes, that is vio­lable here and invi­o­lable there.

There are two things that he might mean by “must” here.  First, he might mean that, as a mat­ter of human psy­chol­o­gy, tor­tur­ing the inno­cent per­son is inevitable.  But if this is so, then it would also be moral­ly per­mis­si­ble since a moral code that for­bids us from doing that which we lit­er­al­ly must do is a defec­tive moral code.

Sec­ond, he might mean that we are moral­ly required to tor­ture the inno­cent per­son.  But it sure­ly seems that if an action must be com­mit­ted then it is moral­ly per­mis­si­ble to com­mit that action.  This is what Walz­er here seems to be deny­ing.

This dis­cus­sion does arise in sec­tion of the book devot­ed to moral dilem­mas.  A moral dilem­ma is a sit­u­a­tion where it seems that no mat­ter what you do you will do some­thing moral­ly imper­mis­si­ble.  Per­haps, in our thought exper­i­ment, we are moral­ly required to do some­thing that is moral­ly imper­mis­si­ble.  This is a con­cep­tu­al cost since it rejects an intu­itive­ly plau­si­ble analy­sis of the con­cept of moral require­ment, though per­haps one Walz­er is will­ing to pay.

But this is a price that needn’t be paid. I can see no clear rea­son to not think instead that there is a very strong, but not excep­tion-less or absolute, moral pro­hi­bi­tion on tor­tur­ing the inno­cent.  If this is so, then there is no dilem­ma because there are no rights.

I do want to point out that this dis­cus­sion is moot rel­a­tive to the prac­tices of the U.S. in the “war on ter­ror”, or, indeed, to any use of tor­ture with which I am famil­iar.  Recall that Walz­er requires a degree of cer­tain­ty and clar­i­ty of thought in mak­ing the deci­sion and a lev­el and imme­di­a­cy of threat that is being avert­ed such that our recent actions sure­ly haven’t met.  Thus, this post is no defense of the moral per­mis­si­bil­i­ty of tor­ture.

Walz­er, Michael. 2006. Just and Unjust Wars: A Moral Argu­ment with His­tor­i­cal Illus­tra­tions. New York: Basic Books.

Further Reading

Allhoff, Fritz. 2005. “A Defense of Torture: Separation of Cases, Ticking Time-bombs, and Moral Justification.” International Journal of Applied Philosophy 19(2): 243–264.

As you might have guessed, this is a defense of the moral permissibility of torture.  Allhoff argues that under a variety of normative ethical theories, torture turns out to be morally permissible in some cases.

Coady, C.A.J.. 2004. “Terrorism, Morality, and Supreme Emergency.” Ethics 114: 772–89.

Coady gives a careful, and subtly, treatment of Walzer’s concept of a supreme emergency as it applies to cases of torture. In particular, he argues for an ingenious analysis of the concept of a non-combatant that is both enlightening and controversial.

Shue, Henry. 2006. “Torture in Dreamland.” Case Western Journal of International Law 37: 231–9.

Shue discusses, not so much the moral permissibility of torture, but rather the inapplicability of ticking time-bomb thought experiments to the debate on the moral permissibility of torture.
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