“Viewers from around the world saw prisoners forced to conduct simulated sex acts and assume positions of sexual humiliation. In one photo, a prisoner was shown standing on a box, his head covered, with wires attached to his fingers, toes, and penis” (Risen 1). On the evening of April 28, 2004, photographs of prisoners being abused by U.S. soldiers were broadcast across the Nation for all Americans to see. While the administration articulated to the American public that this was an isolated incident which was not condoned or encouraged by the administration, several reports published in the aftermath of the scandal proved otherwise. For example, a memo which subsequently surfaced written by the head of the U.S. Office of Legal Council, Jay Bybee, exemplified that the decisions of high-level members of the Bush administration contributed to the Abu Ghraib prison scandal. In his memo, Bybee circumvented both national and international statutes and covenants regarding torture through the promulgation of an extremely narrow definition of torture. While acknowledging that torture was prohibited by the Geneva Conventions, Bybee stated that in order for an act to constitute torture, the infliction of pain “must be the defendant’s primary objective” (Murphy 825). Under this definition, even if an interrogator knew that severe pain was reasonably likely to be inflicted as a result of his actions, his conduct would not be illegal unless the causing of this physical pain was his primary objective. In other words, if an interrogator broke the arm of a prisoner in order to elicit incriminating information, this would be legally acceptable under Bybee’s reasoning. Thus, even in the contemporary era, the tactic of torture has been used not only by rogue states, but also by world’s foremost superpower as a means to extract information from enemies.
The example of the 2004 Abu Ghraib prison scandal serves to show that the issue of state-sanctioned torture has not become moot in today’s day and age. Rather, despite the international consensus against the use of these harsh interrogation techniques, their use has not only continued but has enhanced during the contemporary wave of global terrorism. “Torture is indeed contrary to every relevant international law, including the laws of war. No other practice is so universally and unanimously condemned in law and human convention. Yet, unlike slavery, which is still most definitely practiced but affects relatively few people, torture is widespread and growing” (Shue 124). Although the use of questionable interrogation techniques by the U.S. government was left unchecked during the initial stages of the War on Terror and the War in Iraq, the disclosure of the abuses at Abu Ghraib generated a massive backlash against the proponents of state-sanctioned torture. Beginning in late 2004 and continuing up to the present day, a coalition of military specialists, legal analysts, academics, human rights advocates, and public officials have joined together in order to adamantly press for the restoration of international human rights standards. The ultimate result of this diligent effort has been to open the eyes of the previously uninformed American public about the issue of torture, which has in turn influenced the Bush administration to discontinue the use of at least some of the most harsh interrogation techniques. For example, Major General Antonio M. Taguba published a report in 2004, concluding that the abuses occurring at Abu Ghraib were both systematic and contrary to national and international laws (Fisher 200). Taguba’s determination was supported by a great number of lawyers, who unanimously agreed that the Bush administration’s approval of techniques that amounted to torture was in violation of the 8th Amendment to the Constitution, the UN Convention Against Torture, and the Geneva Conventions. Therefore, it is apparent that a very strong case against torture has been put forth by this passionate coalition, which has undoubtedly facilitated at least the partial restoration of acceptable human rights standards and the delegitimization of the Bush administration’s policies.
While it has generally been concluded that the actions taken by the Bush administration were illegal, immoral, and in a practical sense ineffective, a crucial question still remains: where should we go from here? One answer to this question is to tighten the existing legal restrictions governing the use of torture. While many proponents of human rights may argue that emphasizing this legalistic perspective of torture would serve as a sufficient means to preclude future abuses, this viewpoint is overly naïve. As exemplified by the Bybee memo, creative lawyers often are able to come up with innovative ways to circumvent or altogether controvert the literal or intended meanings of legislative enactments. Therefore, the legalistic response to torture needs to be supplemented with something of a more fundamental nature: an ethical framework designed to refute the use of torture as an official tactic under all real-life scenarios. In this paper I will attempt to show that in addition to the legal case to be made against the use of torture, a very strong case can be made from an ethical perspective as well. I will examine the issue of torture from a deontological perspective, in order to show that the use of torture is morally forbidden. In addition, I will address several arguments put forth by utilitarians, which assert that torture is acceptable under limited circumstances. Thus, I will ultimately conclude that the ban on the use of torture should be absolute rather than conditional: it is an abhorrent practice which is contrary to both our moral common sense and thoroughly calculated notions of morality, and therefore should be prohibited under all circumstances.
A Deontological Rebuke of Torture
From a deontological perspective, the use of torture as a means to obtain information would be strictly forbidden. For example, Immanuel Kant’s formulation of the categorical imperative in the Groundwork of the Metaphysics of Morals serves as substantial proof that torture would be prohibited under a deontological system of morality. Kant argues that the fundamental principle of our moral duties is the categorical imperative. The imperative commands us to pursue a given course of action, regardless of our personal desires and interests. Kant asserts that the categorical imperative applies to us unconditionally and absolutely, simply in virtue of the fact that we possess rational wills (Johnson 4). Kant’s second formulation of the categorical imperative explicitly precludes human beings from being treated as mere means to pursue other ends. “Never treat humanity, either in your own person or in the person of others, merely as a means, but always also as an end” (Kant 5). Kant’s key objective in promulgating the categorical imperative in this way was to forbid the exploitation of the powerless by the powerful in pursuance of their personal desires. If people are treated merely as means, then they are effectively considered to be causally efficacious tools to some goal which does not serve their ends (Kamm 206). According to Kant, downgrading people to the level of means to pursue unrelated objectives undoubtedly violates the fundamental underpinnings of morality itself.
Applying the views of Kant to the issue of torture, it becomes apparent that torture should be prohibited under all circumstances. It is important to note that Kant was primarily concerned with respecting those things which serve as preconditions for the existence of morality in the first place: rationality and free will. It is clear that the unconditional prohibition of torture would serve to ensure that these fundamental preconditions are not undermined. Kant would argue that by permitting and even sanctioning the use of torture as a means to obtain information, a state would be actively violating the categorical imperative. In condoning the use of harsh interrogation techniques, a state would effectively be using an individual simply as a means to obtain allegedly important information. Thus, through forcing an individual moral agent to undergo such harsh procedures, a state would be undermining that individual’s free will and autonomy.
Although the information obtained through the use of torture could potentially produce valuable benefits for the state, the fact remains that Kant would argue that these benefits are ultimately irrelevant with regard to deliberations over torture. “Making us happy and helping us get what we want is not what makes moral principles categorical imperatives; they are rational to follow, even if doing so does not make us happy or promote our personal ends” (Hill 236). In deciding whether or not to permit torture, a state should not take into account whether or not the use of torture could promote legitimate ends: it is forbidden regardless of its external consequences, simply due to the fact that it is commanded by the categorical imperative. For example, suppose we are presented with a scenario in which the torture of a suspected terrorist could potentially save lives. Kant would argue that the consideration of consequences in such a context would be preempted by the necessity of adhering to the demands of the categorical imperative. Authorizing harsh interrogation techniques would effectively transform the victim into a means to an end which the victim has no control over. According to the explicit command of Kant’s categorical imperative, such actions are clearly prohibited on their face. “Since Kant tells us that categorical imperatives are unconditional, absolute, apodictic as opposed to mere prudential ‘counsels,’ it is natural to assume that this means that moral rules are inflexible and admit of no exceptions” (Hill 235). Due to the fact that Kant considers the categorical imperative itself to be an absolute command, it logically follows that all moral rules created by appeal to the categorical imperative are absolute as well. An unconditional ban on the use of torture can be viewed as a derivative imperative, which is shown by the original categorical imperative to be required in all human conditions. Thus, since torture is clearly prohibited by the categorical imperative, it follows that this prohibition is inflexible and admits no exceptions.
At this point, it could be objected that Kant would not oppose the harsh treatment of humans under all circumstances. For example, Kant would most likely articulate that the killing of an armed soldier during a war does not violate the categorical imperative, since that soldier was willingly involved in the process required to wage war (Casebeer 2). Thus, opponents of my argument may assert that if killing is sometimes acceptable in situations such as war, then it naturally follows that torture is permissible as well on account of the war that killing is worse than torture. Such an objection can easily be responded to by indicating that it rests on a misconceived interpretation of Kant’s work. Proponents of this overly simplistic argument fail to take into account the fact that in the text of The Groundwork, Kant places a special emphasis on the relevance of the concept of consent to the resolution of moral dilemmas. “We avoid treating other humans as mere means by getting their consent, either implicit or explicit, but in the best of cases explicitly, to involve them in our plan, project or practice. Questions of consent are thus paramount” (Casebeer 3). In Kant’s ethical framework, consent serves as the essential mechanism by which humans are not downgraded to mere means. Through explicit and implicit consent, individual moral agents are given an opportunity to choose whether or not they will be subject to a given consequence. Therefore, Kant’s framework allows for an individual to be treated in ways which he has previously agreed to be treated.
For example, by choosing to enlist in the armed forces, an individual is acknowledging the fact that his life may be put in danger. However, the situation of a soldier on the battlefield is easily distinguishable from that of individual being subject to torture. Unlike a soldier who is actively assisting in the war effort, an individual being tortured is defenseless. Although it is very possible that the soldier may be killed during combat, not only has he previously consented to this possibility, but he also has the opportunity to ensure his own survival through defending himself. However, none of these things can be said about an individual being tortured: such an individual is deprived of his autonomy completely, and is incapable of defending himself. “At least part of the peculiar disgust which torture evokes may be derived from its apparent failure to satisfy even this weak constraint of being a ‘fair fight.’ The supreme reason, of course, is that torture begins only after the fight is- for the victim- finished” (Shue 130). From a Kantian perspective, the fact that unlike battlefield killings torture is only administered during situations in which a “fair fight” has already concluded, would serve as an adequate justification for viewing the two scenarios differently under an ethical framework. Thus, the principle of just warfare (which prohibits assaults upon the defenseless) can be used in order to justify the disparate moral treatment of battlefield casualties and victims of torture (Shue 128).
Proponents of the use of torture under limited circumstances would once again attempt to refute my argument by asserting that in many situations, torture is used once a soldier is captured by an enemy nation. They would argue that such a soldier is by no means a defenseless victim, due to the fact that he consented to enlist in the armed forces in the first place. Therefore, this soldier is only being tortured after being afforded the opportunity for a “fair fight.” However, my opponents fail to take into account the fact that a necessary condition for the capture of a soldier is the conclusion of the “fair fight” (at least from his perspective since he has been captured). At this point in time, the armed soldier is immediately transformed into a defenseless noncombatant, who lacks any power to restrain his interrogators. It may be true that a fair fight has previously occurred which in turn has led to the capture of the soldier. However, now that the soldier has exhausted all means of defense and is powerless before his captors, there is nothing to prevent the captors from inflicting severe harm (Shue 130).Although this soldier previously consented to take part in the military effort, this specific agreement with the state can not reasonably be interpreted as giving his captors unrestrained consent to treat him as they see fit. “But the consent we give in such ways is not unbounded; when I cease to be a combatant, I am no longer consenting to give up my life for the cause which I am defending” (Casebeer 3). A single specific instance of consent can not be viewed as blank check to completely deprive an individual of his autonomy. Rather, once the conditions upon which an agreement was initially founded cease to exist, it then follows that the individual’s consent under that agreement is terminated as well.
Applying this principle to the scenario of the captured soldier, it is apparent that his consent has been terminated on account of the fact that he is no longer an active combatant. For example, suppose that a suspected terrorist has been captured by U.S. troops in Afghanistan. Clearly this prisoner would not explicitly consent to being tortured, and any implicit consent also disappears at the time of capture, since this prisoner is no longer a combatant. Once captured, this prisoner is simply at the mercy of his interrogators. It can no longer be held that this individual presents a tangible threat to other persons. “In this respect torture is indeed not analogous to the killing in battle of a healthy and well-armed foe; it is a cruel assault upon the defenseless. In combat the other person one kills is still a threat when killed and is killed in part for the sake of one’s own survival” (Shue 130). Due to the fact that this threat is removed upon the capture of a soldier, it follows that it is not justifiable to harm this individual if the goal in doing so is to ensure one’s personal safety. Although self-defense may be a morally acceptable defense on the battlefield under a Kantian framework, the same can not be said after an individual is captured. Therefore, it is clear that the scenarios of killing during combat and torturing the defenseless differ substantially, and should be distinguished within an ethical framework.
It is important to point out here that my assertion that the categorical imperative undoubtedly prohibits torture under all circumstances must be somewhat qualified. The reason for this qualification is that it could be argued that Kant was misguided in articulating that the categorical imperative always yields exceptionless duties. “It should also be clear that substantive categorical imperatives need not be simple, exceptionless rules, like ‘Never lie.’ As noted above, Kant himself believed that there are such absolute rules, but this dubious belief does not follow from the concept of a categorical imperative” (Hill 238). Kant’s assertion that the moral rules created by the categorical imperative can never be violated does tend to come into conflict with our common sense notions of morality in many cases. For example, suppose that a robber has broken into your house and is threatening to kill your mother. When you ask the robber why he wants to kill her, he responds by saying that he was informed that she has previously undergone an abortion, and due to his ardent moral opposition to the practice of abortion, he believes that he is obligated to kill her. However, also assume for the sake of the example that if you chose to lie to the robber and tell him that she had never undergone an abortion, that the robber will then believe you and spare her life. What are you to do in such a moral dilemma? According to Kant, although your mother’s life is at stake, you still must refrain from lying. Kant would attempt to support this course of action by articulating that the categorical imperative can never be violated, regardless of the external consequences. At least from the perspective of our commonly accepted notions of morality based both on our intuitions and on previous cases, the course of action supported by Kant seems absurd. Clearly saving your mother’s life is more important than strictly adhering to the demands of the categorical imperative in the case at hand. Thus, this example illustrates that rather than being absolute demands, the duties created by appealing to the categorical imperative can be overridden when they come into conflict with other more weighty duties. Does it follow from this shortcoming inherent in Kant’s argument that deontological approaches to morality would not support an absolute prohibition on torture?
According to the argument put forth by W.D. Ross in his article What Makes Right Acts Right?, the use of torture nevertheless should be prohibited under all circumstances. Ross argues that all moral agents are subject to the demands of prima facie duties. According to Ross, these duties are fundamental and do not require prior justification. However, it is crucial to point out that these duties differ significantly from those envisioned by Kant, on account of the fact that Ross’ duties are not absolute. In other words, Ross acknowledges the fact that moral duties, as important as they may be, can still be overridden. Ross defines a prima facie duty as one which is incumbent on an agent based on the circumstances of each individual case (Ross 89). These duties are not merely voluntary guides to moral action, but rather serve to require moral action in all cases except for those in which they conflict with other more pressing duties. “When I am in a situation, as perhaps I always am, in which more than one of these prima facie duties is incumbent on me, what I have to do is to study the situation as fully as I can until I form the considered opinion that in the circumstances one of them is more incumbent than any other” (Ross 89). In other words, it is useful to think of these duties as standing moral responsibilities (this term better expresses what Ross meant by prima facie duties), which are basically responsibilities of an ongoing nature that are triggered by specific circumstances.
Similar to Kant’s categorical imperative, acting consistently with these duties is intrinsically right, regardless of the consequences that may result. Upon close examination, it can be shown that the use of torture is inconsistent with several of Ross’ prima facie duties. For one, the approval of torture would violate Ross’ prima facie duty of justice. “Some (duties) rest on the fact or possibility of a distribution of pleasure or happiness which is not in accordance with the merit of the persons concerned; in such cases there arises a duty to upset or prevent such a distribution” (Ross 90). Ross articulates that we have a duty to prevent the unfair distribution of benefits and burdens. Although at first look it may appear that torture is unrelated to the duty of justice, upon further examination it becomes apparent that the two are often intertwined. “Torture tends to be used most often in situations where systematic injustice is working in the background” (Garrett 3). Torture often serves as a means by which to reinforce traditional systems of injustice. For example, police brutality has historically been directed against racial minorities (Garrett 3). Due to the fact that police brutality is disproportionately directed against racial minorities, it follows that this situation represents a distributive injustice. Seen in this light, torture serves as a way for governments to legitimize the maintenance of subordinate social classes. “The social structure is already an unjust one; torture makes the situation worse for those who are already victims in other ways; it is rarely applied against members of already privileged groups” (Garrett 3). As the previous example illustrates, the use of torture as means to maintain social order is generally applied only to societal minorities. Except in the most unusual circumstances, torture is not used against the majority in order to ensure social compliance. Therefore, since it is clear that torture is effectively used as a weapon by those in power in order to maintain existing social conditions, the duty of justice compels us to eradicate this unnecessary evil.
In addition to justice, Ross articulates that another prima facie duty is that of self-improvement. “Some rest on the fact that we can improve our own condition in respect of virtue or of intelligence” (Ross 90). The duty of self-improvement can be interpreted as a command to improve one’s character throughout one’s moral deliberations. However, at least for an individual who is actively engaging in torture, the result of this will likely be the worsening of his character. “In fact, the practice of torture has subtle long-term consequences in those who engage in it. It creates vices in the torturer, for example, a moral habit of cruelty. This vice is reinforced every time the torturer engages in torture” (Garrett 4). The perpetual engagement by an individual moral agent in practices which amount to torture would effectively serve to inculcate this individual with the undesirable trait of cruelty. Although only engaging in torture in a single instance would not likely produce such a drastic effect, over time these cruel practices will be transformed into a natural habit. Furthermore, especially for people in groups with significant power over others, learning that torture is a customary practice will likely encourage dissidents to throw away their concerns (Garrett 4). In other words, viewing torture as an accepted societal practice is analogous to groupthink, in which the concerns of a minority, as legitimate as they may be, are completely disregarded by a majority with a disproportionate amount of power and influence. The ultimate result of groupthink, as applied to torture, is to compel dissidents to abandon their initial convictions and accept the use of torture as a legitimate tool used by the state to extract information. It follows that the character of these dissidents is undermined as well through this process. Therefore, due to the fact that the practice of engaging in torture has the effect of inculcating the torturer with undesirable and dangerous traits, it must be prohibited accorded to the duty of self-improvement.
Although it is not explicitly mentioned by Ross, it could be argued that there exist two additional prima facie duties: the related duties of nonmaleficence and respecting individual freedom (Garrett 6). A necessary precondition of respecting an individual’s freedom is asking that individual for consent prior to taking actions which will produce costly consequences from his perspective. As previously discussed in the section about Kant, explicit or implied consent is not established before engaging in torture. Thus, it is clear that torture involves a violation of an individual’s autonomy, since that individual has not consented to be treated in such a harsh manner. My opponents could argue here that this individual has forfeited a portion of his liberty on account of the fact that he has previously engaged in wrongdoing. However, this argument can be refuted by the fact that at least in most cases, the person suspected of wrongdoing is tortured prior to the commencement of an impartial trial designed to determine whether or not this person actually committed the alleged wrong. “Often the person tortured is suspected of wrongdoing, even of violation of a law. But the torture is usually carried out before the suspect is given a trial of any sort, much less a fair one” (Garrett 6). It is important to remember that once an individual has been labeled as a suspected terrorist, it does not necessarily follow that they have actually engaged in acts of terrorism. Unfortunately, this fundamental principle has been completely disregarded by many governments when attempting to devise special judicial systems to try and convict alleged terrorists.
For example, when attempting to justify the trial of enemy combatants by military tribunal during the War on Terror, Vice President Cheney described these individuals as “the worst of a very bad lot. They are very dangerous” (Irons 248). Reflecting on this assertion several years later, it has become apparent that many of these individuals did not have ties to terrorist organizations at all. The case of Shafiq Rasul provides a telling example of the dangerous implications of the promulgation of a policy authorizing the forfeiture of liberties without a prior trial. Rasul was captured in Afghanistan and forced to undergo six consecutive weeks of harsh interrogation techniques. At the end of the sixth week, Rasul falsely admitted to being in an al Qaeda video. Although Rasul had no connection to al Qaeda, let alone any terrorist activities whatsoever, he was coerced by his interrogators to confess in order to put an end to the torture. “I was desperate for it to end and therefore eventually I just gave in and admitted to being in the video” (Center for Constitutional Rights 2). In addition, the case of Shafiq Rasul is by no means an isolated incident: according to a report released by the Red Cross in 2004, between 70% and 90% of the military detainees in Iraq had been arrested by mistake (Savage 218). Even if it could be proven that torture is an effective tool by which to obtain accurate information about future hostilities, its use would be ineffective in the current scenario due to the inadequate detainee vetting process.
This illustration serves to show that when transformed into an official policy, the forfeiture of liberties doctrine has the potential to be applied in an overly broad manner, which in turn violates the prima facie duty of respecting the liberty of innocent persons. However, my opponents would yet again attempt to refute my argument through articulating that although the duty of nonmaleficence generally forbids moral agents from harming other moral agents, this rule does contain an exception: if the duty not to harm is outweighed by some other competing duty. For example, if a police officer shoots a person in Times Square who he reasonably believes is a suicide bomber (the officer sees a bomb-like device attached to his chest), this action would likely be justified. In such an extraordinary case, it could be argued that the duty not to harm the suspected terrorist has been overridden by the officer’s duty to protect innocent lives. Exceptional cases such as this one will be examined in greater depth in the next section. For the time being, it is sufficient to conclude from this discussion that the use of torture as a means to obtain information, as significant of a goal as that may be from the perspective of the state, nevertheless is in direct violation of Kant’s categorical imperative and several other prima facie duties. Thus, the examination of these several distinct aspects of deontological approaches to morality all provide support for at least a general prohibition on the use of torture.
Utilitarianism and Torture: The Ticking Time-Bomb Scenario
In opposition to the arguments put forth by deontological theorists, several utilitarian theorists articulate that although torture in general should be prohibited, this rule should be qualified. In other words, from a utilitarian perspective, the prohibition of torture should contain several unless clauses. Under John Stuart Mill’s formulation of utilitarianism, the right action is the one, out of all of the alternatives available to a given agent, that maximizes aggregate well being (Casebeer 2). Thus, the only factor to be considered in moral dilemmas is the effect that a given course of action would have on overall happiness. It is easy to see that under utilitarian approaches to morality, cases could be imagined in which the amount of happiness created (or the harm avoided) by the act of torturing a suspected terrorist greatly outweighs the injury suffered by the suspected terrorist. In such a case, the utilitarian calculating device would obligate us to torture the suspect in order to preclude a significantly greater amount of harm. Although he disapproved of the use of torture in general, Jeremy Bentham acknowledged that under limited circumstances its use would be morally permissible. In his article Of Torture, Bentham articulated that although at first he was firmly opposed to the use of torture under all circumstances, further reflection on the basis of utilitarian considerations convinced him to modify his initial view (Turner 18). Through the analysis of several hypothetical cases from a utilitarian perspective, Bentham came to the conclusion that torture was morally permissible under limited circumstances so long as demanding conditions are fulfilled in order to justify its use.
The most common argument advanced by utilitarians in order to justify limited torture is the ticking time-bomb scenario: a terrorist has planted a bomb beneath a football stadium. There’s not enough time to search the stadium to find it. If we torture the terrorist, he may tell us where the bomb is and we can defuse it before it explodes and kills thousands of innocent people (Casebeer 2). Many philosophers who are opposed to torture in general nevertheless concede that it would be permissible under this given scenario. For example, in Why Terrorism Works, Alan Dershowitz argues that in cases of imminent mass terrorism the government should be provided with the authority to use moderate forms of torture for informational purposes only. “If torture is, in fact, being used and/or would, in fact, be used in an actual ticking bomb terrorist case, would it be normatively better or worse to have such torture regulated by some kind of warrant, with accountability, recordkeeping, standards and limitations” (Dershowitz 1)? Dershowitz proposes that a legal framework for torture should be established, which would operate according to a system of torture warrants. These warrants would only be authorized under extraordinary circumstances, such as the ticking time-bomb scenario presented above. While this seems like a reasonable proposal at first look, it fails to address the fundamental question underlying the entire ticking time-bomb scenario: can such as scenario actually occur?
Dershowitz’s argument is misguided insofar as he assumes that a situation such as the ticking timb-bomb scenario could actually become a reality. The circumstances of the ticking time-bomb scenario presented above are very different from those surrounding the actual choices that have to be made regarding torture. For one, the individual who allegedly planted the bomb beneath the stadium in our hypothetical example is not merely a suspect: rather, we undeniably know that he is the person who planted the bomb. In addition, we know for sure that the wiring is not backwards and that the trigger mechanism is not jammed: the device will destroy the stadium if it is not deactivated (Shue 142). Furthermore, we also know that if we torture the suspected terrorist, he will definitely reveal to us the location of the bomb and give us explicit directions on how to defuse it. In addition, we know for sure that the suspected terrorist will provide us with the information we need to save thousands of lives in enough time to actually defuse the bomb. Furthermore, we know that the terrorist will not die during the interrogation proceedings.
It is apparent from this discussion that for a real-life scenario to be even somewhat analogous to the one presented above, an endless number of background conditions would have to be satisfied before engaging in torture. In reality, it would be impossible for many of these prior conditions to be fulfilled. For example, can we ever truly know whether or not the suspected terrorist will provide us with the information quickly enough so that the stadium does not blow up during the course of the interrogation proceedings? Therefore, although exceptional hypothetical cases of imminent mass terrorism may provide us with some lessons in how to handle such dire situations, it is unclear whether or not these lessons can be applied to actual decisions during less exceptional situations. “But one cannot easily draw conclusions for ordinary cases from extraordinary ones, and as the situations described become more likely, the conclusion that the torture is permissible becomes more debatable” (Shue 141). The moral guidence provided to us by ticking time-bomb examples is significantly limited. This guidance would increase substantially if we were presented with a real-life case just like the one presented above: however, it is next to impossible that such a situation, in which all of the endless preconditions are satisfied, will ever occur. “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 141). As articulated by Henry Shue, when attempting to devise ethical principles we should refrain from appealing only to hypothetical cases and instead focus our attention on situations that have a significant likelihood of occurring in the real world. It would be wise of us to heed Shue’s warning: the ultimate result of failing to do so could be the promulgation of ethical principles only appropriate for the resolution of disputes of the imagination.
Furthermore, an additional argument can be articulated against the authorization of torture under extraodinary circumstances. Most of the philosophers who support the use of torture under ticking timb-bomb scenarios share a common misconception: they assume that the use of torture during these situations would always be effective. However, they fail to realize that in order for the use of such techniques to achieve their desired effect, it is first necessary to establish the institutions and practices which enable effective torture in the first place. According to Major William Casebeer of the United States Air Force, the effective establishment of these institutions would require the government to undertake several actions. “This includes the training and equipping of a professional torture force (sloppy torturers are not as effective at getting suspects to divulge the information necessary to realize the benefits of the interrogation), accomplishing the basic scientific research necessary to support effective torture practice, and oversight and review (so that the torturers really do torture only in the justifiable cases)” (Casebeer 2). Although the establishment of these institutions may appear very difficult to achieve, Judge Richard Posner believes that the U.S. is already well on its way to accomplishing this goal. Therefore, Posner argues that for the ticking time-bomb terrorist who has become all too common in the contemporary age of global terrorism, the U.S. should have the ability to “fight fire with fire” (Turner 13).
Contrary to the argument put forth by Posner, events during the War on Terror have exemplified that the establishment of the institutions necessary to guarantee the effective use of torture is far from complete. The most telling illustration of this can be found in the Bush administration’s decision to formulate its harsh interrogation program around the techniques established by the SERE (Survive, Evade, Resist, and Escape) program. The SERE program was originally established by the CIA during the Korean War. During the war, Communist forces tortured captured American troops in order to produce propaganda films of troops confessing to brutal crimes (Savage 216). The CIA knew that the confessions were false and that they had been coerced through the interrogation proceedings, and thus the CIA was looking for a way to prevent the spread of such propaganda in the future. Therefore, in light of these coerced confessions, the SERE program was established in order to put trainees through simulated torture in order to build up their resistance.
When the Bush administration was debating which methods should be used in order to interrogate suspected terrorists, it ultimately decided to adopt the same methods used by the Koreans to torture American troops. As stated by the head of the U.S. Southern Command, General James T. Hill, administration officials tapped the “SERE School and developed a list of techniques” (Savage 216). However, in approving of these interrogation techniques, the Bush administration failed to consider the fact that they were not developed for informational purposes: rather, they were only used by the Koreans in order to elicit false confessions for propaganda purposes. Therefore, the SERE techniques were mistakenly applied by the Bush administration under the misconception that their use would produce valuable intelligence. Even the CIA itself conceded in a 1963 interrogation manual that the coercive approach was not conducive to obtaining reliable information because “under sufficient pressure subjects usually yield but their ability to recall and communicate information accurately is as impaired as the will to resist” (Savage 217).
To make matters even worse for the administration’s program, in the years since the authorization of the harsh interrogation techniques it has become apparent that the officials charged with implementing the techniques were not well-trained. “Neither SERE trainers, who run scenarios by following the instructions in basic military manuals, nor their Special Forces trainees understood that the coercive techniques used in the program were designed to make prisoners lose touch with reality so that they will falsely confess to what their captors want to hear, not for extracting accurate and reliable information” (Savage 217). Due to the fact that the interrogators were not properly trained, they were unaware of both the origins and practical implications of the SERE techniques. Thus, the Bush administration’s approval of the SERE techniques illustrates that Posner significantly underestimates the difficulty of both establishing an effective torture practice, and then properly training and equipping a professional torture force. At least at the current point in time, the U.S. government has not yet been able to establish either of these two essentially preconditions for the effective use of torture. As the example of the Bush administration serves to show, it is unlikely that such institutions will be adequately established within the near future as well.
My utilitarian opponents would respond to my argument by articulating that it is irrelevant whether or not a ticking time-bomb scenario will ever actually occur. “It makes no difference whether cases are real or imagined; all that matters is the theory’s commitment to the moral obligation to torture in some cases” (Allhoff 2). From a utilitarian perspective, the ban on torture should not be considered as absolute if even a single hypothetical instance can be imagined which would prove otherwise. According to the utilitarian, the mere act of imagining such an extraordinary example effectively demonstrates that we must shape our moral rules accordingly in order to take such a scenario into account.
Let us assume for the sake of argument that the ticking time-bomb scenario presented above (with all of its background conditions included) actually occurs at Giants Stadium: we have captured a terrorist who has planned to blow up the stadium, and we know for sure that if we torture him he will quickly provide us with the information necessary in order to save the lives of thousands of people. Should we torture the suspected terrorist in this case? While most people would agree that it clearly would be permissible if not obligatory to torture the terrorist in this case, these individuals fail to consider a factor of enormous importance to be taken into account in such dire situations: the precedent effect. In other words, what effect will my decision to torture the terrorist have on the institutions, legal framework, and government officials regulating the use of torture? In order for the use of torture to be permissible even during a ticking time-bomb scenario, we must first know for sure that such extraordinary incidents do not continue to happen (Shue 142). If such situations become common, the approval of torture under exceptional cases will likely lead to its permanent institutionalization within official circles. It follows that the use of harsh interrogation techniques under extraordinary circumstances will likely be extended to less significant cases over time. “Any judgment that torture could be sanctioned in an isolated case without seriously weakening existing inhibitions against the more general use of torture rests on empirical hypotheses about the psychology and politics of torture. There is considerable evidence of all torture’s metastatic tendency” (Shue 142). According to Henry Shue, it is next to impossible for a government official’s decision to authorize torture in a given case to avoid creating a precedent for the resolution of future cases. The danger inherent in this precedent effect is that the use of torture would increase exponentially over time with each instance of its continued use, to the point at which its effectiveness for informational purposes would be completely undermined. Thus, although it may be very temping to authorize the use of torture during a ticking time-bomb scenario, the ultimate result of doing so would most likely be the creation of significantly more institutional harm over time than if the official had instead decided to refrain from torture.
As this discussion has shown, while the approval of torture would have very dangerous consequences when examined from a legal perspective, these consequences would be even worse from the perspective of ethical theory. The authorization of torture during even a single extraordinary instance would serve to facilitate its perpetual use and even the official institutionalization of torture as an acceptable policy. Therefore, we should refrain from seeking out utilitarian principles to guide us in our deliberations over the interrogation of foreign hostiles. Instead, we should appeal to Kant’s categorical imperative, which commands us never to treat persons as mere means used only to achieve other ends, regardless of how important they may be.
I strongly recommend that Kant’s guidance in this area should be translated into an understandable legal principle: this would serve to increase the effectiveness and enforceability of Kant’s command to ban the use of torture. In other words, we should maintain the existing legal prohibition on torture. Even with this absolute legal prohibition in place, it nevertheless must be acknowledged that if an exceptional case, such as the Giants Stadium example, did actually arise, then the use of torture could be morally justified. However, it does not follow from this acknowledgment that we should heed Dershowitz’s recommendation to relax the existing legal framework governing the use of torture. Rather, we should prosecute all officials who violate the prohibition on torture, but allow them the opportunity to present mitigating evidence on their behalf before an impartial judicial body. Under such a system, if an official was successfully able to show that his decision to torture a suspect was necessary in order to preclude an imminent threat, then the judge would have the discretion to lessen his punishment accordingly. In fact, such an affirmative defense already exists under the current legal framework: the defense of necessity.
Necessity can be successfully invoked by a defendant in cases in which the individual committed a lesser crime in order to preclude a worse state of affairs from coming about (Dintelman 2). For example, suppose that you are driving down the street and are quickly approaching a stop sign. However, before you reach the stop sign a young child darts out into the street to recover a baseball. You are too close to the child to stop in time to avoid hitting him, and so the only way you can avoid killing the child is to swerve around him and go through the stop sign. In such a situation you could be charged with committing a crime, since you ran through a stop sign. However, it is likely that your guilt would be excused by the judge on account of the fact that through your action, you actually prevented a much worse state of affairs from occurring. The defense of necessity generally includes three components: “That the defendant did not intentionally bring about the circumstance which caused the unlawful act, that the defendant could not accomplish the same objective using a less offensive, (i.e. ‘more legal’), alternative available to the defendant; and that the evil sought to be avoided was more heinous than the unlawful act perpetrated to avoid it” (Dintelman 3). Applying the defense of necessity to the ticking time-bomb scenario, it becomes apparent that it could be used by a government official who engaged in torture only as a tactic of last resort in order to lessen his culpability for committing the crime. It is clear that under exceptional circumstances, these three essential components could be satisfied by a government official using torture. However, as exemplified by the very stringent requirements of necessity, such a defense would only be considered as an acceptable legal justification for torture in rare cases.
By leaving the existing torture framework intact, any government official considering the option of torturing a suspected terrorist would first be compelled to think long and hard about the consequences of doing so. On the other hand, if this framework were removed, then this significant torture restraint would be undermined, resulting in the mass legitimization of torture as an acceptable tactic by which to obtain information, even in cases in which less offensive means could be used to accomplish the same objective. It is clear that the system which I have been describing would provide adequate safeguards for the highly unlikely situation in which a real life ticking time-bomb scenario actually occurs. Thus, we should unequivocally heed Kant’s word and maintain the existing legal prohibitions against the use of torture, by actively enforcing the absolute prohibition against the use of torture whose binding force is not subject to temporary suspension on the basis of external circumstances.
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