DRAFT

Ethics of Detention and Interrogation:

Tony Pfaff

Introduction

Detention and interrogation are themselves ethically troubling activities. Detention deprives a suspect of the right to liberty. Further, successful interrogators must sometime deceive, incite, and coerce in ways not normally acceptable for members of the general public. What makes such activities objectionable is that they involve using people in ways they have not agreed to be used, and seems at odds with democratic ideals upholding the dignity and value of human life.[1] Respecting human dignity means giving people the kind of treatment they deserve, but prohibitions against torture, cruel, inhumane, and degrading treatment are based on the idea that there are some kinds of treatment no one deserves.

As a result, both domestic and international law place severe restrictions on who may be detained and the kinds of methods interrogators may employ. However, exigencies in the Global War on Terror (GWOT) have stressed the normal moral and legal boundaries associated with detention and interrogation and given such exigencies, the temptation to ignore these constraints is intense. Detention facilities in Guantanamo, Iraq, and Afghanistan undoubtedly hold persons who possess information that can save hundreds, if not thousands, of innocent lives. This makes taking into account ethical considerations that seem to undermine the effectiveness of intelligence gathering not always morally compelling.

The law of war sharpens this tension by prohibiting “physical or mental torture, nor any other form of coercion,” inflicted on any enemy prisoner of war (EPW) or civilian to obtain information.[2] Such a bright line makes it difficult for even well-meaning interrogators to avoid pushing even approved techniques, some of which are inherently coercive, beyond the spirit, if not letter, of the law.

This environment of moral uncertainty gives us reason to reconsider where the line between necessity and obligations to detainees lay. While moral argument does make room for torture, cruel, inhumane and degrading treatment under certain restricted circumstances—often referred to as “ticking time-bomb” scenarios—it does not follow that such practices should be adopted as policy. We can, instead, recognize torture and ill-treatment as a choice some must make to avoid a greater harm. In doing so, however, those who cross the line must bear a personal moral cost. Otherwise the opportunity for abuse would undermine the U.S.’s commitment to upholding the dignity of every human being.

Ethical Foundations of Detention and Interrogation:

The ethics of detention and interrogation begin with a theory of rights, namely that by virtue of being human, all people are entitled, at a minimum, to the rights of life and liberty. But rights entail obligations, and if someone has a right to life and liberty, someone else has an obligation to preserve them, and this obligation falls to the state. But if the state is to exercise this responsibility it must also have rights of its own, namely the right to political sovereignty and territorial integrity. This provides the moral basis for which U.S. forces may kill, destroy, detain, and interrogate citizens of other states in defense of the nation. However, respecting human dignity places moral restrictions on these kinds of actions.

Consent is a central moral criterion on evaluating our behavior toward others. Murders, thefts, and lies can all be recognized to be wrong because they are violations of consent. No one consents to be murdered, have his goods stolen, or lied to. If he tried, the resultant actions would not be classified as “murder,” “theft,” or “lie” at all. Consent plays such a critical role in moral reasoning because it is the manifestation of the freedom and dignity of the person.[3] Failure to abide by someone else’s consent causes one to treat that person as a non-person, more like a tool than a user, merely a means to one’s ends. However, this does not entail that one must always treat people in a way they would prefer.

Consent restrains, as well as enables, what human beings may be morally permitted to do to one another. By virtue of one’s actions, one can consent to things one would prefer not happen as well as to things that would be immoral without that consent. For example, the quarterback on a football team would prefer not to be tackled by the other team, but if he is, he has no basis to accuse the other team of assault. Arguably most soldiers would prefer not to be shot at, but by virtue of their activities as soldiers, they have accepted that risk. This is why there is no prosecution of enemy soldiers for killing friendly ones, even though it is reasonable to argue their efforts in pursuit of an unjust cause are morally wrong.

Criminals also consent to being punished by virtue of committing a crime. By not respecting the rights of others, criminals must expect a society founded on those rights to punish violators. Whether they do expect it is not relevant, it is simply the case it would be unreasonable if they did not. Further, whether they want to go to jail is also not relevant. It is their activity, not their desire, which establishes what counts as treatment they should reasonably expect. Criminals should reasonably expect that their rights as persons will be respected and that they will be subject to a judicial procedure that will permit them to address their innocence or guilt. But if they are found guilty they may expect to be deprived of their freedom.

By virtue of the threat they represent, insurgents and terrorists have exposed themselves to being killed, detained, and interrogated. But as noted above, quarterbacks, soldiers, and criminals have not exposed themselves to just any kind of treatment. There are limits. What those limits are is the subject of the following sections.

Permissions and Limits on Detentions:

This principle of consent first limits who may be detained. Individuals suspected of insurgent or terrorist activity may be detained for two reasons: 1) to prevent them from conducting further attacks 2) to gather intelligence to prevent other insurgents and terrorists from conducting attacks.

This suggests two classes of persons who may be detained and interrogated: 1) persons who have engaged in or assisted those who engage in terrorist or insurgent activities; and 2) persons who have incidentally come by information regarding insurgent and terrorist activity, but who are not guilty of associating with such groups. By engaging in such activities, persons in the first category may be detained as criminals or enemies, depending on the context. Persons in the second category may be detained and questioned for specific information, but since they have not, by virtue of their activities, represented a threat, they may be detained only long enough to obtain the information. If they refuse to willingly provide information, they must be released. Persons who do not possess relevant information may not be detained.

Permissions and Limits on Interrogation Techniques:

Most cases for permitting torture and ill-treatment begin with variants of the “ticking time-bomb” scenario. The ingredients of such scenarios are usually an impending loss of innocent life, a suspect who knows how to prevent it—and in most versions is responsible for it—and a third party who has no humane alternative to obtain the information in the time left. Such cases are compelling as good people are hard pressed to argue that no form of torture would be permissible, even if there was no guarantee that the torture would yield the desired information.

The Israeli Supreme Court, in rendering its own judgment on the use of torture and ill-treatment, underscored this point when it opened its judgment with the statement, “(t)he State of Israel has been engaged in an unceasing struggle for both its very existence and security, from the day of its founding.”[4] Though it found that forms of interrogation involving physical pressure, as well as cruel, inhumane, and degrading treatment, were prohibited, it did allow interrogators to claim a defense of necessity in “ticking time-bomb” like scenarios. In an example offered by Alan Dershowitz, Israeli agents successfully used torture to find the whereabouts of a kidnapped 19-year-old. His mother, according to Dershowitz, rhetorically asks, "Was this man going to reveal this kind of information if they served him tea and played some Mozart?"[5]

Setting aside the false-dilemma portrayed in this retort, arguments about respecting the humanity of the suspect and upholding laws prohibiting torture and ill-treatment in such situations would hardly be persuasive to victims and their families who would justly ask why their right to life is trumped by the suspect’s right not to be tortured. If we accept that there are cases where torture is morally permissible, Dershowitz reasonably argues, we should then institutionalize it, both in terms of law and practice. However, just because something can be morally permissible it is not self-evident that it should be legally permissible or that intelligence professionals should add it to their list of professional core-competencies.

To illustrate this point, it is important to first note that “ticking time-bomb” scenarios are very restrictive. They limit the kinds of suspects whom it is permissible to torture by the following criteria: 1) the interrogator must have strong reasons to believe the suspect possesses the information; 2) the information must be necessary for preventing immediate harm to innocents; and 3) there must be no way to prevent the harm otherwise. Further, such scenarios require interrogators to apply a “minimum harm” rule and not inflict more than is necessary to get the desired information. Any pain inflicted to teach a lesson or after the interrogator has determined torture will not bear fruit is morally wrong.

What the criteria above exclude is torture or ill-treatment for a population of suspects, even if the interrogator knows one of them has information that will prevent harm to innocents. While the utilitarian logic of this practice can be compelling — torture a few so many may live — ultimately, this practice is morally self-defeating because it puts innocent victims of torture in an impossible position. The person being tortured cannot prove he does not have the information, which presumably is the only thing he can give the interrogator to stop the torture. The only options the subject has is to endure the torture or ill-treatment indefinitely or give the torturer something he will believe, regardless of whether it is false. Placing someone in a position where they have the choice of pointlessly enduring physical pain or lying degrades not only the subject and the interrogator but also the community that permits it. This same logic precludes torturing a known terrorist on the suspicion he has useful information. There is no way he can prove he does not.

A complete account of permissions to apply torture, cruel, inhumane, or degrading treatment would require a discussion of what basis interrogators could claim they know or have strong reasons to believe a detained terrorist possessed information that could prevent the loss of innocent life. Credible sources or even confessions can be wrong or misinterpreted. Since this is an epistemic, rather than moral, question I will set aside a detailed discussion of what counts as knowledge or “strong reasons.” However, in judging whether or not torture or ill-treatment is permitted, the due diligence with which interrogators apply analytical standards must be taken into account.

Further, given the severe restrictions on torturing suspects in “ticking time-bomb” scenarios, it is reasonable to ask if institutionalizing the practice of torture is morally worthwhile. However, prohibitions against torture are so fundamental to the notions of human dignity upon which liberal democracies are founded that we ultimately risk doing more harm than good by overriding them. It is one thing to recognize that on a case-by-case basis we must accept the lesser of two evils. It is something else entirely to assert that there are occasions when overriding democratic values is a good thing. The former risks occasional abuses for which the legal and political institutions necessary to address them remain intact. The latter risks undermining fundamental democratic values—and the institutions that preserve them—in such a way they may not be there for us when the emergency is over.

Institutionalizing torture, cruel, inhumane, and degrading treatment also risks the integrity of the intelligence and military professions. It will require establishing law that sets aside the Geneva Convention and the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. While this will be politically difficult and could undermine international and domestic support for the global war on terror (GWOT), failure to do so will put the associated government agencies in the morally precarious position of training its people to do illegal acts.

Assuming this is resolved, there are other moral costs that need to be addressed. Institutionalizing torture means that people skilled in the art and science of torture will have to be recruited and trained. A number of studies indicate that this has negative psychological as well as moral consequences as habituating people to do cruel things risks making them cruel people.[6] If one accepts that information gained from torture is usually unreliable and if one adds this to the cost of institutionalizing torture to professions as well as professionals, it is not so clear, even from the view-point of necessity, that ultimately the good obtained from permitting torture outweighs its harms.

A more morally consistent approach would be to recognize that there are occasions where violating legal and moral norms are understandable—that is we can recognize that a good person might commit such an act—but not necessarily recognize that the act is good. In such cases, someone who committed an act of torture must offer his actions up for review and judgment by a competent authority. An excellent example of how this worked in real-life is the case of a 4th Infantry Division Battalion Commander who permitted his men to beat a detainee whom he had good reasons to believe had information about future attacks against his unit. When the beating did not get the desired results, he fired rounds around the detainee’s head. The tactic was apparently successful and U.S. servicemen lives were likely saved. However, his actions clearly violated the Geneva Conventions and he was prosecuted by the Army. He was, however, not punished under the full extent of the law, but was instead fined and allowed to retire.[7]

This resolution permitted the commander to do what he felt certain was the right thing. But it also required him to be certain the right thing in this case was worth giving up his career. Thus we can recognize good people may be placed in situations where there is no morally good choice, but we do not have to redefine our morality to accommodate it.

Conclusion:

The work of the interrogators, because it is indispensable to the state fulfilling its obligation to secure the life and liberty of its citizens is itself a moral obligation. But the methods employed must reflect this nation’s commitment to human dignity. However, acting morally does not necessarily mean states must give up obtaining critical information, but it does mean they may have to give up certain ways of obtaining it, even if that means members of the military and intelligence professions must take greater risks.

Of course, the tension between necessity and humanity will remain. Because of this, military and intelligence professionals must accept that in crises they may find themselves in circumstances where lives will be at stake and the morally appropriate way to preserve those lives will not be obvious. This should not preclude action, but these professionals must be prepared to accept the moral, as well as legal, consequences of torturing or otherwise ill-treating suspects. Failure to recognize and accept this represents the worst kind of careerism as it places the professional’s career over the needs of the profession and the nation it serves.

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