Torture, Cont.

ER 11, Govt E-1040Spring 2012

Torture: could it be justified?

Agenda --

• Ticking bomb cases

• Explore first, then return to Kantian argument, to see its relevance for torture case

Ticking bomb cases

• Suppose we know X planted a bomb that is about to explode and would kill many people

• X is confessing, but not otherwise cooperating

• no other ways of extracting information

Ticking bomb cases and the “war on terror”

Ticking bomb, cont. • Interrogational torture

(Shue) – end point available, verifiable

• Different from terroristic torture

• “Surely, we should be allowed to apply torture, contrary to the absolute prohibition of torture in human rights declarations and conventions”

Pushing the argument

• If argument is correct, we found an extreme case in which torture is justified

• So torture is not in principle unjustifiable

• Must decide on conditions when torture is justifiable – find suitable regulation

Is this convincing?

Bad Response

“Torture does not work”

Depends massively on circumstances

• If question is “Did Saddam Hussein collaborate with Osama bin Laden,” confessions under torture would be useless

• Different if statements are readily verifiable – see Gaefgen/von Metzler case

Another bad response

“Torture is not an overall wise strategy because it will make those who are

angry already yet more angry”

True, but would still permit occasional secretive use of torture

Different strategy

Assume there are justified cases of torture as stipulated by argument

Then explore whether this really says anything about regulation

Two concerns• conditions under which torture seems clearly justified

are very unusual

– Do not lend themselves to regulation

• process of regulating torture creates problems of its own

• – regulation might create more problems than it

solves

Reasoning by Hypothetical

• Imagine strange scenarios to understand our reasons

• abstract from factors that distract

• Problem: hypotheticals might bear too little semblance to reality to be helpful in finding good regulations

Hypothetical

Rarely will we be certain – if uncertain, may torture innocent people

Hypothetical

Rarely will torture be essential: other techniques

Alternative Methods

• Incentivized cooperation

• Good cop/bad cop

• Pushing emotional buttons

• Pumping up the ego -- change of environment makes people susceptible to cooperation

Heny Shue, Torture • “If the example is made sufficiently extraordinary,

the conclusion that the torture is permissible is secure. But one cannot easily draw conclusions for ordinary cases from extraordinary ones. (…) Notice how unlike the circumstances of an actual choice about torture the philosopher’s example is. The proposed victim of our torture is not someone we suspect of planting the device: he IS the perpetrator. He is not some pitiful psychotic making one last play for attention: he DID plant the device. The wiring is not backwards, the mechanism is not jammed: the device WILL destroy the city if not deactivated. ” (p 141f)

So: granting that in ticking bomb cases torture is permissible (even required) does not imply

that torture should be regulated

Institutionalization Creates Problems

• If torture is legal, there would be torturers

• unrealistic that such people could be instructed and supervised without torture being applied more widely than intended

• “mission creep”

“To a man with a hammer, everything looks like a nail.” (Twain)

• Exacerbating: people often have limited capacity to relate to another person’s pain, to understand “what torture is like”

Recall: Jacobo Timerman “In the long months of

confinement, I often thought about how to convey the pain that a tortured person undergoes. And always I concluded that it was impossible. It is a pain without points of reference, without revelatory symbols or clues to serve as indicators.”

From Darius Rejali, Torture’s Dark Allure

“Few things give a rush quite like having unlimited power over another human being. A sure sign the rush is coming is pasty saliva and a strange taste in one’s mouth, according to a French soldier attached to a torture unit in Algeria. That powerful rush can be seen on the faces of some of the soldiers at Abu Ghraib a rush that undoubtedly changed them forever. The history of slavery tells us that one can’t feel such a rush without being corrupted by it.”

“To think that professionalism is a guard against causing excessive pain is an illusion. Instead, torture induces a dynamic that breaks down professionalism. Milgram has shown that professionalism can serve to excuse ever more violent behavior.”

• Milgram experiments

Encountering Torturers • John Conroy,

Unspeakable Acts, Ordinary People, Chapter on “Torturers”

• Last sentence: “Finding these men was not easy, convincing them to talk to me was hard work, but invariably our meetings went well. I never met the monster I anticipated.” (p 122)

Philip Zimbardo’s Prison Experiments

Argument so far

• have granted that there are cases of justified torture, but argued that these would be extreme cases

• Moreover, regulation triggers problems of its own

So inference from existence of specific cases to need for regulation does not follow

Better not to regulate

In relevant cases applying torture may be like civil disobedience

Alan Dershowitz, Tortured Reasoning

• (…)[I]f torture is being or will be practiced, is it worse to close our eyes to it and tolerate its use by low-level law enforcement officials without accountability, or instead to bring it to the surface by requiring that a warrant of some kind be required as a precondition to the infliction of any type of torture under any circumstances?” (p 257)

Relevance of Kantian argument

• There may be cases of justified torture, but if so, (a) these would be extreme cases that (b) do not lend themselves to regulation

• Can support human right against being tortured, but not because there is absolute right never to be so treated

Is there absolute right not to be tortured?

If so, most plausibly in terms of dignity