The Question

Sept. 12, 2008:

“Nearly six in 10 white evangelicals in the South say that torture can often (20 percent) or sometimes (37 percent) be justified in order to gain important information, according to the survey, conducted by Public Religion Research. This compares to about half (48 percent) of the general public who believes torture can be justified, according to a Pew Research Center poll earlier this year.” (see here)

There are two major moral positions in the current “torture debate”:

Torture is flat-out wrong– i.e., what’s called a “moral absolutist” position.

Torture is wrong but may be employed in certain circumstances, i.e. what’s called in some cases a “practical moral absolutist” position.

The first of these positions is deontic: it holds that the act itself is so odious that it ought never to be practiced under any circumstances.

The second position is consequentialist: it posits that while torture is indeed repugnant, good consequences may stem from its use.

Let’s look at the latter of these positions.

The consequentialist argument for the use of torture is the so-called ticking time-bomb scenario (TTS).

Briefly,

Agents capture an individual they believe to be a terrorist who they suspect may have information concerning an imminent threat (such as a bombing) to the lives of many innocent people. In this case, based on a cost-benefit intuition, torturing one person to save many others seems clearly to be acceptable.

Advocates of TTS hold that while torture itself is repugnant, there are specific situations where it must or ought to be permitted.

This is also known as a “Rule-and-Exception Argument” or, in legal language, the “necessity argument”– a criminal act (torture) is justified because it is necessary to prevent a worse crime.

The argument is intended to get people to abandon the position that torture is flat-out wrong in absolute terms.

It is also VERY important to note that the function of TTS is to use an “extreme” example to open the door for other uses of torture. In other words, the fantasy of TTS is a means of introducing the use of torture in the extraction of information IN GENERAL. Once it has been established that TTS is valid, then the next move for its advocates is to ask why torture might not be permissible in other contexts. To find the location of terrorist leaders, bases, weapons caches, etc.

Logically, the argument is inconsistent in several ways.

In formal terms, let us first note that it is based on the apparently false postulate that if an absolute sanction against torture cannot be consistently supported, then torture is permissible.

The next criticism of TTS is empirical, and holds that TTS is an implausible hypothetical. No one has yet been able to establish that such a situation has ever occurred or, indeed, is likely to occur.

But let us get to the terms of the argument itself.

“ Agents capture an individual they believe to be a terrorist”

Is the individual in question proven to be a terrorist or is s/he merely suspected of terrorism?

Simply describing someone as a terrorist without some process of adjudication means that their putative guilt is a value statement. We haven’t proven that the individual is a terrorist; we’ve merely claimed it.

[The notion that a bad person may be tortured stems from a Kantian argument: the bad person’s behavior-- his violation of some universal ethical norm-- removes him from  treatment under that norm. Roughly, this is what might be called an eye for an eye, a principle according to which, for instance, the terrorist who harms others surrenders his right to protection from harm.  This is a fairly brutal standard of justice, it should be noted, and has been rejected by most of the world.

At any rate, the idea that the terrorist may be harmed due to his guilt in harming others doesn’t even apply at Abu Ghraib or Guantanamo because, as the ICRC has documented, perhaps 80-90% of the detainees were simply victims of circumstance with no connection to terrorism.

In a further inversion of justice, torture then becomes the method of establishing guilt. The “punishment”  (torture) precedes the conviction of the accused. But if this is the case it contradicts the TTS, which presumes the guilt of the victim prior to torture.

As Thomas Hildre phrases it: “If torture is used as a means of gathering information, including the information of whether or not the detainee is a terrorist, the Kantian argument collapses for it requires this information in advance of the act.... In fact, the Kantian argument ends up applying perhaps even more forcefully the other way around-- against the torturers.”]

“ a terrorist who they suspect may have information concerning an imminent threat (such as a bombing) to the lives of many innocent people.”

There are several presumptions here:

That the “terrorist” has the right information.

That s/he will yield that information only under torture.

That s/he can, in fact, be “broken”.

That there is adequate time to “break” the prisoner.

In addition, this part of TTS assumes that the agents possess enough information already to reasonably suspect the existence of a plot. That is, a plot to bomb a particular place in the near future. In fact, they must know almost all there is to know about the plot except the vital missing information of where the bomb is located and when exactly it is set explode.

TTS also relies on on a prior assumption of its own conclusion: that the information is of greater moral significance than the act of torture. In other words the argument begs the question by beginning with what is supposed to be concluded. We may only know that the information is of greater moral gravity once we have tortured to  gain the information. Torture is only acceptable in the acquisition of “good intelligence” and we only know if that intelligence is “good” once we have tortured.

Even further, as the confessions of the Inquisition tell us, the “truth” of torture is agonized delirium. Under torture, thousands of people such as “Dr. Fian”, whose legs were crushed in “the boots” and who had wedges driven under his fingernails, “confessed”  to crimes: Fian told his torturers “that several hundred witches had gone to sea in a sieve from the port of Leith, and had raised storms and tempests” (Hilde 197).

“In this case, based on a cost-benefit intuition, torturing one person to save many others seems clearly to be acceptable.”

TTS is a means of institutionalizing of torture. If we accept the use of torture in the specific situation of the TTS then we have accepted torture as method. If we accept torture as a method, we will need a set of torture procedures. These procedures– their efficacy– will have to be determined by professionals or experts– medical, security, and legal personnel. Also, future torture experts will need to be trained. Manuals will need to be produced and training programs formulated.  Buildings well need to be set aside. Budgets allocated. Supplies distributed. TTS is the door into the institutionalized use of torture.

The terms of comparison in the cost-benefit analysis, then, are not one terrorist’s well-being versus many innocent lives. They are rather, 1) the civil institutions of a liberal democracy and the people employed by them and 2) “many innocent lives.”

The first term of comparison includes the psychological impact of torture on the torturers themselves as well as the inevitable conflicts between doctors/lawyers/police/soldiers/citizens who condemn torture and those who approve of its use.

The use of torture is a recipe for the destruction of the core institutions of an open society.

And it is wrong.

An account by Gerry Adams, MP of Belfast West, describing his torture at the hands of British forces.

An article on the use of torture by the French in Algiers.

A report by Physicians for Human Rights on the effects of so-called enhanced interrogation techniques (i.e., torture).

A paper (pdf) regarding TTS, on which my own remarks depend quite heavily.

A timeline charting the CIA’s use of extraordinary rendition.

Raphaëlle Branche, Université de Rennes, gives a talk on French torture in Algiers.

Documents FOIA-ed by the ACLU.

Human Rights Watch’s recent work on US detainee abuse.

WhatReallyHappened.com

ICRC page on the Geneva Conventions.

UNCAT