Can Interrogatory Torture Be
Morally Legitimate?
Robert G Kennedy, PhD
Professor of Management
Mail #MCN 6001
VOX: 651 962 5140 FAX:
651 962 5093
e-mail: rgkennedy@stthomas.edu
Socrates:
There are these two evils, the doing of injustice and the suffering of
injustice—and we affirm that to do injustice is a greater, and to suffer
injustice a lesser evil.
Gorgias, 509c
Plato
(Article 5):
No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.
Universal
Declaration of Human Rights
United Nations
1948
(Article 7): No one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment.
(Article 4, §1): In time of public
emergency which threatens the life of the nation . . . the States Parties to
the present Covenant may take measures derogating from their obligations under
the present Covenant to the extent strictly required by the exigencies of the
situation . . .
(§2) No derogation from articles 6, 7, 8,
11, 15, 16 and 18 may be made under this provision.
International
Covenant on Civil and Political Rights
United Nations
1966
(Part I,
Article 1): Torture is “any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person for such purposes as
obtaining from him or a third person information or a confession, punishing him
for an act he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or for any reason
based on discrimination of any kind, when such pain or suffering is inflicted
by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity. It does not include
pain or suffering arising only from, inherent in or incidental to lawful
sanctions.”
Convention
against Torture and Other Cruel,
Inhuman or
Degrading treatment or Punishment
United Nations
1984
|
I |
n the 1994 Hollywood film, Guarding Tess, Nicholas Cage plays
Douglas Chesnic, the head of a Secret Service unit assigned to protect Shirley
MacLaine, who plays Tess Carlisle, the widow of a recently deceased president.
On the surface, Chesnic and
Was Chesnic wrong to do this? He imposed severe psychological and physical pain on someone[1] for the purposes of obtaining information, but he had powerful reasons for believing that person to be guilty of a serious crime. He acted very aggressively when other means might, in principle, have been available, but he was right to think that time was running out. He acted on his own initiative, but he was an agent of government and his actions were later “endorsed” by the president. Was Chesnic a torturer? Perhaps so. Were his actions morally wrong? Was the human dignity of the chauffeur, who was defenseless and in a hospital bed, violated? Again, perhaps so, but before we hurry to judgment there are other factors we should consider.
Suppose the same cast of characters but a different set of facts. Imagine that Chesnic witnesses the chauffeur forcing Tess into the car, striking her senseless to stop her cries for help. Chesnic is too far away to wrestle with the chauffeur but close enough to have a clear shot at the man. Shooting him, even wounding him, can almost surely prevent the kidnapping. Should he take the shot?
Common
sense almost certainly would lead us to conclude that Chesnic, or a police
officer in a similar situation (the abduction of a child, for example), would
neither violate the human dignity of the perpetrator nor do something immoral
if they took the shot. What are the differences between these examples? In each
case, a duly authorized officer discharges his weapon against someone engaged
in a life-threatening crime in order to save an innocent victim. Does it matter
that in one case the action is aimed at acquiring information necessary to
frustrate the crime but in the other the action immediately and physically
frustrates it? At first it seems hard to say.
Consider
another example, then. Suppose the terrorist practice of suicide bombing should
move outside
Someone might
object that the examples offered here are contrived and arise rarely, if ever.
Perhaps so, but in fact a number of other examples could be brought forward to
illustrate a fundamental inconsistency in our ethical analysis of problems like
these, which is to say problems about the morally legitimate use of force. In
practice and in public policy, our judgments about these questions too often
are either utilitarian (e.g., the bombing of
The immediate
problem in this paper is the question of whether the imposition of severe pain
or discomfort on a subject in a process of interrogation is always wrong. There
should be no doubt that it can be wrong and probably quite often is wrong, but
must it always be so? Proponents of the absolute position that it is always and
everywhere wrong appeal to human dignity, human rights, and to a common sense
revulsion at the thought of deliberating harming another human being. Fair
enough, but the concept of human dignity (and its expression as a set of human
rights) cannot merely be used as a trump card that ends discussion. It must be
examined more carefully to determine what its concrete requirements are.
Moreover, common sense, while it can be a good intuitive first step, can never
be a substitute for systematic ethical analysis.
The task before us, then, is to think through the requirements of human dignity (and so human rights) and to use these requirements to evaluate the moral status of interrogation and interrogatory methods.
What Does Human Dignity Require?
The problem
posed by the urgent need for successful interrogations and the ancient and
understandable hostility to torture is but a species of a larger issue. This
larger issue is the question of when, if ever, human persons may legitimately
be coerced to act against their wills and, more particularly, whether physical
force of one sort or another may be used as an element of coercion. Other
species of this larger issue include the disciplining of children, the defense
of persons or property by private individuals, police actions, and war. Each of
these involves instances in which (physical) force might be required to bring
about legitimate ends. Would the use of force in any of these categories
necessarily constitute a violation of human dignity and human rights?
The idea that human persons are endowed with a value or a dignity (from the Latin dignus = value, worth) is an ancient one. As it is derived from the Judaeo-Christian theological tradition[2], it has not been a universal feature of Western civilizations.[3] At the root of the idea is the conviction that persons share equally in this dignity and that certain sorts of actions may never be chosen by others because they would constitute a violation or denial of that dignity. For example, the life of an innocent person may never be directly and intentionally taken, nor may a person ever be sodomized or raped. Each such act would reduce the person to the status of a thing and deny the value of that individual’s personhood.[4] This is what Kant meant when he said that persons must always be regarded as ends and never treated by others as mere means to ends chosen by those others.
The twentieth century, which witnessed some of history’s most gruesome violations of human dignity, also was the century in which a commitment to human dignity was widely embraced, from the United Nations’ Universal Declaration of Human Rights (1948) to the proliferation of human rights groups worldwide.[5] This is undoubtedly a very good thing, but it also has brought with it a sort of rhetorical excess that can serve more to obscure than to promote. This can happen in two ways.
First, we often hear human dignity and human rights described as “inalienable” or “inviolable” or “absolute.” This is misleading because it tends to two dimensions of human dignity into one. Human dignity is inalienable or inviolable but only if we are talking about the existence of the characteristic. To put it another way, the moral doctrine of human dignity insists that it is a characteristic that belongs to every person without exception, that it is permanent, and that it cannot justly be denied or extinguished. None of this pertains to the extent of human dignity.
Consider this simple example. It is widely agreed that human dignity requires respect for the right to own property. In the sense that no human person can be denied the right to own property as a matter of principle, the right is inviolable and absolute. However, this right to own property, as an expression of human dignity, does not by itself substantiate a claim to own this or that piece of property. Nor does it justify a limitless claim on pieces of property in the face of the overwhelming need of others. As regards its existence only, the right to own property is inalienable and inviolable; as regards its extent, the right may be justly qualified in a variety of ways and for a variety of reasons. Not least of these reasons will be the requirements of the common good of the society.
This distinction between existence and extent is obscured in discussions about human dignity and human rights when the absoluteness of the first category is carelessly applied to the second. As suggested above, some human rights are absolute, but most are not. Human dignity is both protected by and governed by justice. One person’s right to acquire property, for example, is limited by the right of others to hold their property in peace and safety.
A second
category of confusion about human dignity has to do with what qualifies as a
human right. There is an endless list of claims that can be dressed up in the
language of human rights. Convicted criminals serving a prison sentence can
claim that failing to provide them with pornography or Internet access is to
deny them their human rights; same-sex partners (soon to be followed by
polyamorous groups) can claim that the failure of states to recognize their
relationship as a marriage is to deny their human rights; and so on. Such
claims are rarely followed by tight arguments explaining why they should be
considered human rights.[6] Too often they are trump cards played to
discourage further discussion by implicitly labeling opponents of the claims as
potentially willing violators of human dignity.
These
claims are frequently left unchallenged, however, because we are unclear about
what a human right really is and how it may properly be limited.
Human
rights are distinct from created or contingent rights. Created rights are not
rooted in what it means to be a person but instead derive from some contingent
event or relationship. They may be brought into being (and defined) by promises
or contracts, legislation, relationships (family, friendship, etc), or by some
other event. By contrast human rights are defined by human nature and by the
general requirements of a fulfilling human life. The catalogue of human rights
would follow from a catalogue of basic human capacities and from the
requirements of human well-being.
By way
of example, a summary of human rights might be divided into four categories
(though there could certainly be other ways to organize our thinking about the
kinds of human rights). One would include rights related to the human capacity
to reason, such as a right to the truth, to education, and to free inquiry. A
second would include rights related to the human capacity to choose, such as
(among many others) the liberty to choose an occupation, a spouse, or a place
of residence. A third would concern individual well-being or, we might say,
bodily integrity. Rights in this category would include the right to life, as
well as rights to safety and freedom from intentional physical and psychological
harm. The final category would be related to the social nature of the human
person. Rights here could be the right to belong to a community, to form a
family, and to participate in governance and culture.
Human
dignity requires that the rights in each category be respected, but it does not
require that each right be treated as if it were absolute in extent. Indeed, to
demand this would be an absurdity, for to treat every right as if it were
absolute in extent would create an impossible world. Every person possesses a
right to know the truth but this cannot be absolutized in such a way as to
extinguish the human right to privacy. We respect the human right to truth by
not telling lies; we do not have a duty to be completely candid and to share
every secret. Similarly, individuals have a human right to choose an
occupation, but this is limited by their capacities and by the nature of the
occupation. For example, there is no violation of rights if someone who cannot
sing is denied a starring role with an opera company, nor is anyone free to
choose robbery or blackmail as an occupation.
Furthermore,
the full set of human rights, qualified though they may be in many general
ways, are also qualified in individual instances by the requirements of
justice. For example, individuals have a general right in their movements and
in the way in which they structure their lives. Some régimes arbitrarily and
unreasonably restrict the movement of their citizens and so violate that human
right. However, individuals who abuse their freedom by engaging in criminal
activity may justly forfeit some of this freedom to the state, or they may
suffer some other penalty that may constitute a diminishment of their rights
(e.g., a fine, mandatory community service, restitution, prohibition from
working in a certain occupation, etc). Assuming that the penalty is
proportionate to the offense, it would not constitute a violation of a human
right.[7]
On the
other hand, we have yet to consider whether the use of force, including the
intentional imposition of pain or discomfort, is a necessarily violation of
human rights, or whether it may sometimes be a justified exception.
The human
capacity to choose freely points us in the direction of a set of human rights
that are both fundamental and extensive. Perhaps the most fundamental right in
this set is the right to be free from coercion in making choices.[8] The exercise of free will is one of the
defining characteristics of the human person and so the most appropriate way to
bring about a change in someone’s plans or behavior is to use arguments (not to
be confused with quarrels) and other forms of persuasion. The attempt to coerce
someone to act against his will is ordinarily, therefore, a far more serious
matter than simply restricting his freedom in some external way. If such a use
of force is unjust it constitutes an immediate attack on human dignity and so
must be avoided. The questions that we must address are whether the use of
force or the imposition of pain may be justifiable and whether such justifiable
coercion could occur in the context of interrogation. To this end we will try
to tease out the broad outlines of a theory of the just use of force.
Can coercion be just? On the one hand, it would seem that coercion is never justified because coercion always aims to produce behavior that is contrary to the will of the person coerced. A moment’s reflection, however, should make it clear that there is a major qualification to the right not to be compelled to act against one’s will.[9] This qualification is that one must will what is good, or at least that one cannot will what is harmful to others, to the good of the community, or, strictly speaking, to oneself.
Consider some examples in categories of action apart from interrogation in which force or pain might be used. For example, parents must discipline their children, which is to say that at minimum parents must shape habits in their children that will give them the capacity to avoid harming themselves and others. To this end parents legitimately restrict the freedom of their children to choose whatever pleases them, and sometimes the restrictions are physical and forceful. [10] When these actions are done for the sake of the child’s well-being (or for the well-being of others) and are proportionate to the achievement of that well-being, they are justified.[11]
On rather a different level we have the private defense of persons and property. Few people would deny that individuals may justly use proportionate force to defend themselves, their families, and their property from unjust assault. This would be true even if, in cases where serious harm to the innocent were threatened, the defensive force resulted in severe harm or death to the attacker.
Or consider examples from the category of police action. Until relatively recently most police officers had a very limited range of options from which to choose when confronting a person engaged in a criminal act that threatened serious harm to persons or property. They could confront the person verbally, they could strike him or attempt to constrain him physically, or they could shoot him. Given the volatile situations in which officers could find themselves, most police departments have encouraged them to adopt fairly low thresholds for resorting to firearms. Though the rule may not be “When in doubt, shoot!” it is not too far from this. Within the last few years, however, a range of intermediate weapons has become available. These weapons are normally less-than-lethal, but they are capable of causing discomfort, significant pain, or even serious injury.[12] Nevertheless, they are widely regarded as welcome additions to the police arsenal because they provide options better proportioned to most police incidents than the use of deadly weapons. Implicit in this acceptance is the recognition that some people behave in ways that cause them to forfeit their right not to be physically harmed. Another way of saying this is to say that people engaged in certain kinds of bad behavior can no longer assert their human right not to be harmed if force is necessary to deter or frustrate that behavior.
Of course, the most obvious example of this principle has to do with war and military action. While many specific actions in war may well be immoral, it is widely acknowledged that some deliberate actions that harm or even kill soldiers are morally justified. Combatants—those engaged in the business of war—may rightly be subject to violent force whose object is to prevent them from achieving their objectives.
All of these cases share some common elements and the following set of principles is proposed as a general theory of the just use of force intended to apply to these and all similar situations.[13]
We may
begin with the assumption that argument and persuasion aimed at changing the
plans and behavior of human persons are the means most respectful of human
dignity. This dignity is most fully respected when persons are helped to see
the truth and freely to choose the good. However, it is also common human
experience that virtually all of us on some occasions in our lives, and some of
us on many occasions and in very serious ways, make plans and choose behavior
that harms the dignity and property of others. While it would be better for us
to amend our choices freely, we are not always willing to do so. Therefore, on
some occasions, as noted above, it will be morally legitimate for others to
frustrate our plans and take steps to change our behavior. My further
contention is that the use of force, not excluding the imposition of pain,
injury, or even death, can be justifiable, according to the following
principles.
First, the person or group employing force must have Standing to Act.[14] This means that the person or group must have some responsibility for the good to be protected by the use of force. The principle will be applied as a matter of prudence and so more broadly in some cases than in others. For example, we are likely to apply it narrowly with regard to the disciplining of children, limiting Standing to Act to parents and perhaps other close relatives. On the other hand, almost anyone witnessing, say, an assault on an elderly woman would have Standing to Act to protect her. In other cases, such as the use of some kinds of force (especially deadly force) by the police or the military, we would define Standing to Act narrowly again.
Second, the person or group employing force must have Sound Reason to Act.[15] Sound Reason to Act exists when real harm may be done[16] or actually is being done to persons or their property and when at least four additional criteria are met.
One: The criterion of Discrimination, which is to say that force may only be directed against a person who is know to be acting badly or to be planning to act badly, especially when the bad action is directed against the person or property of others. In some special cases (e.g., children, persons who are severely depressed or mentally incompetent), force might be employed to prevent someone from harming himself.
Two: The criterion of Necessity, which is satisfied when there is a legitimate need for action to be taken and no non-coercive means are reasonably available.
Three: The criterion of Proportionality, which requires that the potential or actual harm to others or their property is sufficiently serious that the use of force is warranted,[17] and also that any force employed be reasonably proportioned to the harm caused and to the status of the perpetrator.[18]
Four: The criterion of Prospect for Success, which limits the use of force to situations in which there is ample reason to believe that the force employed will bring about the hoped-for change in plans or behavior.[19]
Third, the person or group employing force must have Right Intention in Acting.[20] In general, this means that the person or group must intend primarily to prevent the harm being caused or about to be caused by the perpetrator. The principle is violated if the prevention of harm takes second place to a desire to exact vengeance, to exercise power, or to obtain some sort of advantage over others.
The use of force, whether it be a matter of restraint or threat, or the actual imposition of pain, injury, or death, always marks a breakdown in the peace and harmony that ought to characterize human relationships. It causes damage that may not be immediately apparent and sometimes that damage later fuels still further erosions of peace and harmony. It can never be chosen lightly and it must always be employed to restore an authentic and just peace. While force is sometimes a necessary tool, it is also a dangerous one for families and communities to employ. We need to consider now whether and to what extent it may legitimately be used in the context of interrogation.
Torture is an
ugly word, and the practice of torture in all its forms has a particularly ugly
history. It is for good reason that civilized communities, from ancient times,
have severely limited or abolished torture as an instrument of the state. The
word “torture,” however, is used to name a number of different practices that
involve the use of force to change plans or behavior. Some of these practices
are rightly condemned as gross violations of human dignity, but must this be
true of all?
We can
begin to answer this question by sorting out the principal kinds of situations
in which torture is said to be involved. First of all, torture may be used as a
punishment or in the context of interrogation. For purposes of this paper, we
will not be concerned with the morality of punitive torture and so we may set
it aside to concentrate on interrogatory torture.
Interrogatory
torture, which in general aims to elicit information or consent from the
subject, may also be broadly divided into three categories, judicial torture,
probative torture, and defensive torture. Judicial torture is the name I will
give to situations where torture is employed to compel a subject to confess to
a crime, to accuse another person of a crime, or otherwise to give evidence
about a crime for use in legal proceedings.
Probative torture is a practice that has probably been universally abolished by which a person accused of a crime is subjected to an ordeal as a test of his innocence or guilt.
Defensive torture describes a situation in which a person is subjected to one form of force or another in an effort to compel that person to cooperate in frustrating or curtailing a harmful act. The relevant act may be one in which the person himself is engaged or it may be one of which he has knowledge.[21] In either case there is a serious harm that can be prevented but the subject refuses to offer the cooperation necessary to prevent the harm.
For the sake of argument, we will stipulate that judicial torture and probative torture are violations of human dignity and cannot be morally legitimate. We will further stipulate that torture, of whatever sort, is not constituted merely by the use of force but only by the use of severe force. That is to say, modest physical or emotional discomfort and other mild uses of force do not rise to the level of torture.[22]
The question that remains is: Can defensive interrogatory torture ever be morally legitimate? For example, could a terrorist who has knowledge of an imminent bombing be justly subjected to torture in an effort to compel him to reveal what he knows about the attack? Could a kidnapper be tortured in an attempt to learn the whereabouts of his victim? Could a confessed murderer be forced to reveal the location of the victim’s body?
To answer this we need to appeal to the principles governing a just use of force as discussed above. Defensive interrogatory torture may be legitimate if some instances of it can satisfy all of the criteria enumerated.
Two of the principles can be easily satisfied, or at least it can be easily determined whether a particular situation can satisfy them. They are the principles of Standing to Act and Right Intention to Act. Torture, as it is ordinarily defined, is a public act. That is to say, it is the act of a state authority, working through those persons properly delegated to act on behalf of the state. Police, for example, are authorized to do things to protect the common good that private citizens are not permitted to do. Similarly, persons generally authorized to use force for the sake of the common good (i.e., the police and the military) may be assumed in principle to have Standing to Act. It may however come to be the case, as some have suggested, that the employment of torture (if it were morally legitimate) would be reserved to certain persons explicitly empowered to use it. Others, except perhaps in very serious emergencies, would not have Standing to Act.
Right Intention to Act merely requires that persons employing force do so for the sake of preventing harm to innocent persons or their property. As mentioned above, this principle is violated if force is used for revenge, for personal gain, and so forth.[23]
The real difficulty with defensive interrogatory torture has to do with whether instances of it can ever satisfy all of the criteria associated with Sound Reason to Act.
The first of the criteria, Discrimination, could be satisfied if the subject of the interrogation were known beyond reasonable doubt to possess the information necessary to frustrate the bad act and if he were unwilling to reveal that information. The criterion would not be satisfied if the subject were merely suspected of possessing information.
The second criterion, Necessity, could be satisfied if time was short and no means of compelling cooperation short of force were available, which brings to mind something like a “Ticking Bomb” scenario.
The third criterion, Proportionality, requires something quite serious to be at stake. In the present world situation, with the wide concern about further terrorist attacks, one can readily imagine that some severe risk to innocent persons could be at stake. If so, the criterion of Proportionality would probably be fulfilled.[24] However, we must be careful not to be so unimaginative that we cannot conceive of less serious uses of force than torture to accomplish our ends, or so complacent that we are too readily prepared to fall back on torture if other means are not rapidly successful. The use of torture has implications beyond the immediate suffering of and harm to the subject, and these implications ought to be considered in the context of Proportionality.[25]
The final criterion, Prospect of Success, plays a larger role in the question of interrogatory torture than it normally does in other instances of the use of force. This criterion can be satisfied only when there is very good reason to believe that the force applied will result in the cooperation needed. It is not satisfied—and the use of force cannot be justified—when it is reasonably believed that a proportionate use of force will not compel cooperation or when the level of force deemed likely to succeed is disproportionately severe.[26]
Another consideration comes into play here as well. Judicial interrogatory torture has generally fallen into disuse in one culture or another because is an unreliable way of arriving at the truth. Subjects have a strong incentive to say what the interrogator wishes to hear, whether that be an accusation or a confession; anything to bring the torture to an end. The cases where torture was commonly used were often those in which no adequate corroborating evidence was available. As a result, where genuine success would be a determination of the truth, a phony success—an accusation or a confession that could not be independently verified—was accepted as a substitute.
Therefore, the criterion of Prospect of Success, with regard to defensive interrogatory torture, should also entail, the condition that the information obtained from the subject be able to be readily verified. In this way, the subject, knowing that the information he reveals can be promptly checked for accuracy, will be much more likely to tell the truth.
In sum, defensive interrogatory torture may be morally legitimate if imposed by persons properly authorized to do so, who act with the intention of protecting the innocent, and if there is a sufficiently grave risk to the well being of these innocent people (or their property). Furthermore, the subject must be known beyond a reasonable doubt to possess the capacity or the information needed to frustrate the bad act and be unwilling otherwise to exercise that capacity or reveal that information; time constraints or other conditions must make alternate methods of obtaining cooperation unreasonable; the harm at issue must be grave and the means used to obtain cooperation must proportionate to that harm; and there must be good reason to believe that such interrogatory methods would be successful and that information received could be promptly verified.
While these conditions may actually be fulfilled in some cases, this probably would happen rarely.[27] It is quite likely that most instances in which interrogatory torture is employed would not conform to these principles and so would be immoral.
Should Justifiable Instances of Torture Still Be Avoided?
The purpose of
this paper has been to examine more closely the question of whether some sort
of interrogatory torture might be morally legitimate in some cases. I have
argued that in some narrow range of cases the use of force, including the
intentional imposition of severe pain, may be morally justified. Nevertheless,
even if such legitimate instances exist, there may still be compelling reasons
why the
One reason is that we have entered into international agreements which, in some cases, seem to entail a commitment not to employ torture, and in one case at least this commitment seems to be exceptionless.[28] It may be that such agreements are not considered to be binding on nations in the same way that criminal laws and contracts are binding on individuals. I will leave that to the experts in international to determine. However that may be, two considerations may be relevant. First, it is hard to imagine that a commitment to refrain from a morally legitimate action can be binding in the face grave risk to the innocent. One of the most fundamental and solemn obligations of the rulers of a nation is to protect the innocent, and it seems unimaginable that a nation can be legally bound to refrain from doing what its moral obligations might require it to do. Second, from the way torture is defined and treated in the international declarations and covenants of the twentieth century one might reasonably conclude that either punitive torture or some immoral category of interrogatory torture is intended, but not defensive interrogatory torture as it has been discussed in this paper. In any event, fidelity to international law and agreements may be a reason to avoid all uses of torture.
A second
reason may be to avoid what moralists call scandal. By this we mean not a
shocking or startling event, but an act that provokes or encourages others to
act badly. For the
A third reason, and one that should not be dismissed lightly, is the effect of employing torture on both the interrogator and the character of the nation. Both war and torture are nasty affairs, and even if the acts carried out in war are morally justified, they may still have deep psychological effects on those who fight. Similarly, the employment of torture cannot fail to affect the interrogator, regardless of how clearly he or she sees the good to be achieved. Furthermore, the lines between interrogation and revenge or punishment can easily be blurred, both by the individual and by the nation.
A fourth reason to avoid torture is that it may lead the nation and its leaders to be more willing to employ immoral uses of force, both within and without the context of war. The analysis presented here of interrogatory torture does not rely on utilitarian or consequentialist calculations of benefits and harms. In times of crisis, though, we are tempted to adopt “any means necessary” to protect what we value, but in doing so we may damage what we value after all. The use of torture, the justification of which would not be understood or accepted by everyone, might provoke many people to be prepared to endorse other, immoral actions on the basis of a flawed utilitarian analysis that they wrongly believe to justify defensive interrogatory torture.
Finally, it may be the case (though I think it is not) that interrogatory torture is actually futile, i.e., it simply doesn’t work. During the Second World War it was widely believed that strategic bombing of population centers (London, Berlin, Tokyo) would so weaken the resolve of civilians to continue the war that their leaders would be compelled to sue for peace. This proved not to be true, as civilians generally demonstrated an amazing endurance; bombing seemed to strengthen their determination rather than erode it. By the same token, we may find that the use of torture is counter-productive. Those upon whom we may think to use it may be able to resist it in many cases. Or its use might inflame others to even more acts of terrorism. Or it may fail for other reasons. If this were to prove to be so, then the use of torture in interrogations would fail the criterion of Prospect of Success, and its use would therefore be unjustified and immoral.
The world in
which we live has always been a messy place. In recent years, with the spread
of terrorism, the increased prospect of asymmetric warfare, and the development
of more portable weapons of mass destruction, it has become much messier. The
wars of the twentieth century made civilians more vulnerable. Both police and
the armed services will need to adapt their strategies and tactics for the new
realities. No one can be an enthusiastic advocate for the use of torture, even
in critical situations. Nevertheless, the protection of the innocent may
justify aggressive means of interrogation that we had hoped we had left behind.
NOTES
[1] The film is unclear about whether
Chesnic’s first and only shot actually wounded the chauffeur or whether Chesnic
merely fired near him to frighten him into cooperating. The difference would
seem to be immaterial with reference to the common international definitions of
torture.
[2] The Judaeo-Christian tradition grounds
the dignity of persons in their status as images of the Creator. As such, human
dignity is not an achievement but an endowment that is permanent and
irreducible. Other schools of thought, such as the Kantian, ground human
dignity in rationality or some other characteristic of human persons. Still
others simply presume it as a basis for morality and do not seek to justify it.
For our purposes, the rationale for human dignity is not important so long as
it is understood to be universal and permanent.
[3] Some cultures and some
schools of thought deny the reality of human dignity in principle or argue that
it is not universal in extent. So, unless utilitarians take human dignity as an
axiomatic starting point, they must regard it as contingent upon circumstances,
such that they can never object always and everywhere to direct killing, rape,
kidnapping, and so on. On the other hand, some cultures have assumed that
dignity was a function of birth or citizenship or some other accidental
characteristic. For them, slavery and other practices were not inherently wrong
since not everyone possessed a dignity that would be violated by these actions.
What was wrong was to treat a free man as if he were a slave, or to treat a
person of noble birth as if she were base-born.
[4] We will not attempt to create an
exhaustive list of actions that constitute inherent violations of human dignity
since our ultimate purpose is merely to determine whether interrogation
entailing force would be such an inherent violation.
[5] In public policy discussions we commonly
speak alternately of human dignity and human rights. For the sake of our
investigation, we will assume that human rights are an articulation or fleshing
out of the practical requirements of human dignity. That is, to say that
something is a human right is to say that it is a right grounded in the dignity
of the person as a human being.
[6] Confusion is also often created by the
failure to distinguish between what philosophers sometimes call positive and
negative rights. This has nothing to do with goodness or badness, but instead
calls attention to the difference between rights that require others to act in
a certain way (positive) and rights that require others not to act in a certain
way. The right to life, the right to marry, and the right to work are all
negative rights because they require that others not interfere arbitrarily as
individuals live their lives. The right to marry, for example, does not require
that the state recognize all sorts of unions and partnerships as marriages, but
it does require that the state not unreasonably impede persons from creating
that relationship. It is a serious misunderstanding of the right to marry to
say that the state has a positive obligation to create circumstances where
everyone can “marry” by defining a variety of non-traditional relationships are
marriage. By the same token, the right to work requires others not to interfere
unreasonably in an individual’s pursuit of a livelihood; it does not normally
create a positive obligation on the part of the state or anyone else to create
a job for that individual.
[7] There can be no such thing as a
“justified violation” of a right, whether human or created. Rights, by
definition cannot be justly violated, but most rights are qualified, sometimes
in ways we do not make explicit. What are sometimes presented as justified
violations are, to the extent that they are indeed justified, exceptions to the
right, not violations of it. Punishments and penalties are exceptions of this
kind.
[8] A note about terminology. We will use
the term “coercion” to mean any attempt to change the plans or behavior of
another by means of force. Coercion is a morally neutral word, which is to say
that an injustice is not implied by its use. While many instances of coercion
may indeed be unjust and even criminal, some examples of coercion may
nevertheless be justified. The term “force” we will understand to include
potentially a range of behaviors, including threats and intimidation,
restraints of all sorts, and the imposition of pain, injury or death.
[9] Note that we are talking about
compelling behavior, not belief or conviction. Strictly speaking, while
behavior might in some sense be forced, belief cannot be.
[10] Concrete examples might include
physically taking dangerous objects from a toddler or forcefully separating two
children who are fighting.
[11] It should be noted that parental use of
coercion sometimes constitutes a special case. This is so when parents act to
correct for the immature judgment of children. Young children, and even
teenagers, do not always reason well and so cannot always be persuaded by
argument to act in certain ways even when it is in their own self-interest to
do so. On these occasions parents do not violate their human rights by
forcefully channeling behavior in harmless directions. Nor, it seems to me, do
parents violate the human rights of young children by occasionally imposing
small pains on the child in order discourage dangerous behavior. Beating
children or severely punishing them out of anger is quite a different matter.
[12] The range of weapons includes not only
chemical sprays and the well-known devices that stun with an electric shock but
also guns that fire capsules of pepper spray or foul-smelling liquids, guns
that fire nets, and even shotgun shells loaded with beanbags. These last can
stun someone and even break an arm.
[13] The similarity of these principles to
the general principles of Just War Theory is no accident and should not be
surprising. It is the case of war that has drawn the most attention throughout
the centuries and so the rules governing the use of force in war are the most
highly developed. Nevertheless, I maintain that these rules about war are
merely a special application of a more general theory about the morally
legitimate use of force.
[14] This principle is analogous to the
principle of Legitimate Authority in Just War Theory.
[15] This principle is analogous to the
principle of Just Cause in Just War Theory.
[16] The harm involved need not be
intentional. Force might still be justified to prevent someone from causing
harm inadvertently, carelessly, or through ignorance.
[17] Some harms to persons or property, while
real, are relatively trivial and, consistently with Socrates’ principle, should
be tolerated rather than resisted with force. This is true on the personal as
well as the social level. The virtue of patience is precisely the virtue that
permits wise individuals and wise nations to tolerate for the sake of peace
what provokes the unwise to violence.
[18] This criterion requires that some
judgment be made about the force required to change the behavior of the
perpetrator. These judgments cannot always be perfect, but the force that might
be required for an adult is likely to be quite disproportionate to a child.
Similarly, and obviously, the police and the military should be able to bring
various grades of force to bear on a situation, up to and including deadly
force.
[19] In most cases, this criterion will be
satisfied without doubt, but it may be important in a few special situations.
[20] Once again, this principle has a direct
analogue in Just War Theory.
[21] For example, a kidnapper who is taken
into custody is still engaged in the ongoing act of holding the victim against
his will. An accomplice to a conspiracy may no longer be able to move the
project forward, but he may still have information about who plans to do what
to whom, and when and where it will be done. In both cases, one can imagine
force being used to compel the subject to cooperate by revealing information
that could prevent or mitigate the harm.
[22] Thus a prisoner who is denied his
preferred diet while being interrogated is not on that account being tortured,
provided he is otherwise reasonably well fed.
[23] Needless to say, Right Intention cannot
be present if the interrogator derives sadistic pleasure from torture.
[24] A test for proportionality might
consider what level of force might be appropriate to prevent someone from
carrying forward his plan for bad action if he were caught in the act. Someone
who knows where and when a bomb will explode and refuses to share that
information so that the explosion can be prevented is a formal cooperator with
and has the same moral responsibility as the person directly detonating the
bomb.
[25] Some of these implications would include
scandal (which is encouragement given to others, such as dictatorial leaders,
to act badly in imitation) and the psychological effects of torture on the
interrogator.
[26] I have deliberately not attempted a
taxonomy of methods of torture and a subsequent analysis of which methods would
be morally sound in which circumstances. I am not sure, in fact, that this can
be done in the abstract. Some uses of force—rape, for example—are immoral in
themselves and could never justly be used in interrogation. I am inclined to
think that the most severe uses of force, perhaps those involving mutilation or
permanent injury, are likely to have a low rate of success (and therefore would
not qualify for use), but I am not sure this is true.
[27] The fictional example with which I began
the paper may well fit the criteria we have discussed and so be a justifiable
instance of defensive interrogatory torture.
[28] The