[6.11.] Torture.

 

David Luban is a professor of law and philosophy at Georgetown University. We will be discussing his 2005 article “Liberalism, Torture, and the Ticking Bomb.” He will be arguing against a specific attempt to morally justify torture.

 

 

[6.11.1.] The Two Traditions Revisited.

 

A quick refresher on the differences between the two main traditions of normative ethics: consequentialism and deontology.

 

consequentialism (df.): the tradition of normative ethics that judges whether an action is moral or immoral based only its consequences (i.e., its effects); nothing else about the action is morally relevant. The most widely accepted form of consequentialism is utilitarianism

 

deontology (df.): the tradition of normative ethics that focuses on duty, holding that there are some actions that you have a duty to perform and some you have a duty not to perform, regardless of the consequences (from Greek “deon”, meaning duty). [We will discuss deontology at length when we study the ethical theory of Immanuel Kant.]

 

Because they are consequentialists, utilitarians do not oppose anything on principle. They do not regard any actions as being inherently or intrinsically immoral (immoral in and of themselves); for utilitarianism, an action is immoral if and only if that action (or the rule that that action follows) leads to bad consequences (lower overall happiness, lower overall well-being, etc.).

 

On the other hand, deontologists can reject various actions based on principle, i.e., they can say that, even if x has good consequences, it is still always immoral to do x.

 

This difference between the two traditions gives rise to very different ways of trying to answer the question whether torture is ever morally permissible:

·         A utilitarian will ask whether torture (either a specific act of torture, in the case of act utilitarianism, or a general rule permitting torture in the case of rule utilitarianism) has good consequences (increased happiness or well-being). If it does, then it is morally permissible... maybe even obligatory.

·         It is open for a deontologist to say that all cases of torture are always immoral, no matter what good consequences might come from them. She can say that, even if torturing a given terrorist is guaranteed to yield information that will save lives, it is still immoral to do it.

 

 

[6.11.2.] “The Liberal Ideology of Torture.”

 

A key idea in Luban’s article is what he calls “the liberal ideology of torture.” I will abbreviate this LIT.

 

Luban uses the word “liberalism” in its traditional, broad sense, to mean support of freedom, democracy, limited government and “the importance of human dignity and individual rights.” (RTD 191)

·         It is an essential part of this view that all human beings are morally equal and that we all have inherent dignity.

·         It is closely associated with John Locke and John Stuart Mill, the latter of whom gave a utilitarian justification for it in his book On Liberty.

·         This is the more common use of the word among philosophers and other scholars. In the popular press, “liberalism” is typically used in a much narrower sense, to mean social liberalism, a view that favors governmental restraints on the operation of business, at least a moderate welfare state, and tolerance of the non-traditional when it comes to religion, sex, and race. In this narrow sense, “liberalism” is the opposite of “social conservatism.” In the broad sense of “liberalism” with which Luban is concerned, in includes both social liberalism and social conservatism. [1]

 

Luban notes that the collateral damage frequently associated with military assaults—the horrific physical damage done to innocent civilians, including children—is far worse than anything that has been attributed to the United States during the war on terror. But for most people, torture seems morally worse. But why? “[W]hat makes torture more illiberal than bombing and killing”? (RTD 191)

 

He answers as follows:

 

The answer lies in the relationship between torturer and victim. The self-conscious aim of torture is to turn its victim into someone who is isolated, overwhelmed, terrorized, and humiliated. Torture aims to strip away from its victims all the qualities of human dignity that liberalism prizes. The torturer inflicts pain one-on-one, deliberately, up close and personal, in order to break the spirit of the victim—in other words, to tyrannize and dominate the victim. ...

                [T]orture is a microcosm, raised to the highest level of intensity, of the tyrannical political relationships that liberalism hates the most. (RTD 191-92)

 

Because of “the close connection between cruelty and tyranny” (RTD 194), liberals think of cruelty as being exceedingly bad; Luban says that for liberals cruelty is “first among vices.” (RTD 194)

 

Luban lists five ways in which torture has been used throughout history:

 

1. to please the victor after warfare has ceased
2. to terrorize others
3. to punish
4. to extract confessions—essentially backward-looking; “aims to document and ratify the past for purposes of retribution” (RTD 193)

 

None of these is acceptable within a liberal framework.

 

5. to gather intelligence—essentially forward-looking... this is a justification that might be acceptable to a liberal.

 

·         If this is the motivation for torture, we can think of it as a method of last resort, something that the torturer—who may well be a kind person—does not want to do but finds that he or she must do in order to get information that will save lives.

·         This motivation divorces cruelty from torture, and thus it might make it an acceptable practice for liberals who wish to prevent even greater evils from occurring.

 

Luban is not saying that liberals have in fact been in favor of torture for intelligence gathering. Rather, his point is that even though traditionally they have been very strongly against it, their world-view allows for the possibility of it. “As long as the intelligence needs of a liberal society are slight, this possibility within liberalism remains dormant...

 

But when a catastrophe like 9/11 happens, liberals may cautiously conclude that, in the words of a well-known Newsweek article, it is “Time to Think About Torture.” (RTD 195)[2]

 

This is the view that Luban calls the liberal ideology of torture (LIT). In greater detail, it consists of the following claims:

1.      “the sole purpose of torture must be intelligence gathering to prevent a catastrophe”;

2.      “torture is necessary to prevent the catastrophe”;

3.      “torturing is the exception, not the rule, so that it has nothing to do with state tyranny”;

4.      torturers “are motivated solely by the looming catastrophe, with no tincture of cruelty”;

5.      “torture in such circumstances is ... little more than self-defense”; and

6.      “because of the associations of torture with the horrors of yesteryear, perhaps one should not even call harsh interrogation ‘torture.’” (RTD 195) [Cf. the G. W. Bush administration’s coinage of the phrase “enhanced interrogation techniques” to describe practices such as waterboarding]

 

The normative view that underlies the LIT is utilitarianism: “Consequences count, and abstract moral prohibitions must yield to the calculus of consequences.” (RTD 195)

 

 

[6.11.3.] The Ticking Time Bomb.

 

The vivid example usually cited to illustrate the LIT is the ticking time bomb (see RTD 195).

 

The time bomb story has two rhetorical functions:

 

1.      It is meant to get the prohibitionist (the person who wants to prohibit torture) to concede that, in at least some circumstances, torture would be morally permissible. Once he makes that concession, he can no longer stand on principle and say that torture is always immoral, no matter what the circumstances.

 

2.      It tries to make us see the torturer differently, not as a sadistic or cruel brute, but rather as “a conscientious public servant ... willing to do desperate things only because the plight is so desperate and so many innocent lives are weighing on [his or her] conscience.” (RTD 196) [It casts the torturer in the same light as Jack Bauer, the hero of the television drama 24.]

 

 

[6.11.4.] Against the Ticking Time Bomb: The Knowledge Problem.

 

Luban argues that the ticking bomb thought experiment is “the wrong thing to think about” when trying to come to grips with whether torture is ever morally permissible, and that once we see this, “the liberal ideology of torture begins to unravel.” (195)

 

Luban points out that in any realistic situation, the torturers will not know with certainty that the person being tortured has information that will, when disclosed, lead to innocent lives being saved. Even in the real-life case in which law enforcement authorities in the Philippines gathered life-saving information by torturing an al Qaeda suspect, the authorities didn’t know what information the suspect had until he revealed it... at which point he was near death already.

·         “The ticking-bomb scenario cheats its way around these difficulties by stipulating that the bomb is there, ticking away, and that officials know it and know they have the man who planted it.” (RTD 197) This will never be the case in any realistic situation.

·         Realistically, the best we can hope for is some very good reasons for thinking that the torture-victim knows something that will save lives and that he will actually divulge that information. “The real debate is not between one guilty man’s pain and hundreds of innocent lives. It is the debate between the certainty of anguish and the mere possibility of learning something vital and saving lives.” (RTD 198)

·         If torture is permissible in that situation, there seems to be no good reason against torturing in the following situations--

·         Suppose you know that one of 50 prisoners at Guantanamo Bay knows the location of Osama bin Ladin; you can torture all fifty, causing horrible pain to the 49 who don’t know anything, in order to get the information. (This assumes that getting that information will actually save lives.)

·         You can torture someone to get information that will further the war on terror in some other way—not to get ticking-bomb information, but to otherwise help the cause.

·         You can torture a suspect’s family, including his children, in front of him, in order to get him to talk.

 

Luban seems to be suggesting a hypothetical/theoretical slippery slope argument...

 

1.      If torturing a suspect in a (realistic) ticking-bomb situation is permissible (despite the fact that we are not certain that it will save lives), then it is permissible to torture in the other cases as well.

2.      But it is not permissible to torture in those other cases, e.g., to torture the suspect’s children.

3.      Therefore, it is not permissible in a (realistic) ticking-bomb situation.

 

“Once you accept that only the numbers count, then anything, no matter how gruesome, becomes possible.” (RTD 198) In other words, a utilitarian defense of torture will justify torture so long as it results in more lives being saved overall... even if the people who must be tortured are innocent children.

 

[This response to the ticking-bomb scenario suggests a problem for utilitarianism itself: it is impossible to know with certainty that an action you perform will have the consequences that you predict it will have.]

 

 

[6.11.5.] Against the Ticking Bomb: Policies, Not Ad Hoc Decisions.

 

The ticking-bomb scenario “assumes a single ad hoc decision about whether to torture ... But in the real world of interrogations, decisions are not made one-off. The real world is a world of policies, guidelines, and directives. It is a world of practices, not of ad hoc emergency measures.” (RTD 198)

 

[“ad hoc” means “for the particular case at hand, without consideration to wider applications”; the literal, Latin meaning is “for this.” An ad hoc decision is a one-off decision, made only for the sake of the specific situation at hand.]

 

For this reason, “any responsible discussion of torture must address the practice of torture, not the ticking-bomb hypothetical.” (RTD 198)

 

When we remember this fact and think about torture more realistically, a whole tangle of questions must be confronted... (see RTD 199) Luban concludes that “the real issue .. is not ... emergencies, but ... the normalization of torture.” (RTD 199) And the normalization of torture leads to pretty horrific, although completely predictable, results such as what happened at Abu Ghraib (see 199-202 for details).

 

 

 

Stopping point for Wednesday October 28.  This is the end of the lecture notes that will be covered on your second exam, which is Monday November 2. Next time, we will finish discussing Luban’s article and then have a brief review for the test. Come prepared to ask any questions you still have about the study guide or the course material.