Justice Paper 1 – Can Torture be Justified as a Last Resort?

January 1st, 2003 by MrLuxuryFashionGuru
Jason Yeo, Oct 2005 

 

[NB: A bibliography apparently was not required for this piece of writing so the references are not cited as thoroughly as I would have liked.  There are many little problems in the essay, of course, but the main flaw is the clear logical fallacy that the rightful powers of the state are always limited by what rights citizens can delegate to the state based on natural rights.  For example, the state has the right to levy taxes, conduct (justified) search and seizure and incarcerate criminals, all of which individuals do not have the right to do in the Lockean “state of nature”.]

Can Torture be Justified as a Last Resort to Prevent an Imminent Terrorist Attack?

No, torture is not justified, even as a last resort to prevent an imminent terrorist attack.  In this paper I will begin by highlighting the precedence and moral priority of individual and state rights as central considerations over utilitarian principles.  I will proceed to draw a clear distinction between death (and capital punishment) and non-lethal torture to show why the difference is not “merely aesthetic” as Dershowitz writes but instead illuminates a clear moral principle against torture.  I will argue that because of its fundamentally cruel, debasing nature, torture cannot be rightfully used by a society that draws its legitimacy and moral force from the consent and will of its members.  At the same time I will refute the assertion that the acceptance of capital punishment provides similar grounds for accepting torture.  I will also use the loosely-interpreted moral idea of “innocent until proven guilty” to reject the reasoning that “imminent terrorists” can be deserving of less than human treatment.  I will conclude by reminding us of the empirical case against torture before reiterating the more powerful argument that rights are prior to utility and torture can never be rightfully practiced.

In considering torture as a last resort to prevent an imminent terrorist attack, which is after all an action of the state against an individual, there are two key issues – the rightful powers of the state, and the rights of individuals within that state, including suspected terrorists.  While both sets of rights are firmly against torture under any circumstances, I will concentrate on the rightful powers of the state although the same reasoning upholds the rights of the individual or suspected terrorist.

So why is a discussion of rights more relevant in this case than a discussion of pure utility, which Dershowitz believes is the central justification of torture as a last resort?  It is because without a system of rights the state cannot exist with any powers whatsoever and hence states are defined by their rightful powers and how these powers are justified, before any considerations of utility.  A democratic state cannot rightfully act, even to maximize utility, if nobody agrees to the action in question or if everyone is opposed to the proposed action.  In responding to a consideration of rights, utilitarian thinkers would postulate either that individual rights are immaterial and imaginary and cannot be raised above the principle of “the greatest happiness for the greatest number”, as Bentham would argue[1], or that individual rights are a reflection of rule utilitarianism, where history has shown as a general rule that the recognition of these rights ultimately leads to the case of maximal utility, an idea espoused by Mill.  Bentham and Mill are right in sharing an underlying assumption with Locke that human society is based on the belief that cooperation improves the utility of everyone above what they would have enjoyed in the pre-political condition that Locke termed the “state of nature”.  However, Bentham and Mill are both mistaken in their assumption that people would agree to any and everything, including increased risk to their own liberty, in order to maximize the social sum of utility, and that individuals cannot possess and uphold moral beliefs and principles beyond utilitarianism in coming together to form a democratic society.  These moral beliefs can stem from religious convictions not justified by utilitarian concerns[2], such as Locke’s belief that individuals do not have the right to willful self-destruction because we are God’s creations.  Alternatively, these beliefs can be based on theories of natural rights, on moral intuition, on simple preferences or even on what Dershowitz disparagingly calls “aesthetics”.  The point is that the state only has as much rightful power as people choose to delegate to it, and people can make this choice (by majority or some other agreed-upon scheme) based on whatever criteria they choose.  Further, the rights of the state flow from the consent and delegated rights of the people, but individuals cannot rightfully authorize the state to perform acts that they would not have been morally permitted to perform themselves in a state of nature.  Thus the rightful powers of the state are constrained both by what the majority (however defined) of its members want, and also by what powers this majority can rightfully delegate to the state.            

So what is it about torture that puts it beyond the rightful powers of the state, and why is it that individuals cannot, even by absolute consensus, morally authorize the state to carry out torture, under any circumstances?  The answer is simple – torture is cruelty, and by definition torture in this case is the deliberate dismantling and crushing of another individual’s humanity and moral will.  By subjecting an individual to pain and torment beyond their capacity to bear mentally or physically, they are robbed of their ability to think, to reason, and to act morally.  Being tortured is equivalent to being reduced to a bestial state of reflexive self-preservation and desperate instinct.  No one is surprised by (and torturers actually capitalize on) the reality that under torture individuals will abandon their beliefs, their loved ones and their self-respect.  In short, the victim of torture can be considered to be in a coerced, inflicted state of insanity, where they have been intentionally deprived of the reason, morality and free will which comprise the essence of their humanity.  Beyond the degrading and devastating moral effect upon the victim, some would argue that performing torture even reduces the torturer to a lesser moral state because they have resorted to bestial, inhuman means to coerce another against their will.[3]  In other words, torturers have abandoned the use of reason – the hallmark of humanity – in favor of coercive force – the domain of beasts and tyrants.  It is not necessary to go that far to see that torture is always a complete debasement of the victim’s humanity and hence is never within an individual’s rights under any reasonable scheme of morality.

It should be uncontroversial that no individual human being has the natural right to subject another person to cruelty or to strip them of their humanity, and society certainly cannot delegate this right to the state when they do not individually possess this right to start with.  Even if they could rightfully do so, it is unimaginable that people would consent to form a society where their self-possession and humanity was even more in peril than in a state of nature.  This limit on state powers based on rights and consent traces itself to Locke, who would no doubt also argue that if self-possession be accepted as the given basis of private property as he thinks, then humanity is the most essential and inviolable of all our possessions.  Again, if no individual can claim this right over other humans – that is the right to rob them of their humanity and coerce them into a bestial state of submission – then no individual or majority of individuals can authorize their state to do the same on their behalf.

Some might be tempted at this stage to argue that currently in America, it is considered acceptable to punish serious crimes on pain of death, and thus a society that supports capital punishment cannot logically oppose non-lethal, non-permanent torture as a last resort on moral grounds.  There are in fact several reasons why this is false.  As a preliminary point, the case for capital punishment is by no means settled in this country, given that many individual states have expressed their opposition, and the bulk of developed nations including most of Europe has already concluded that capital punishment is immoral and a violation of human rights.  It may well be that one generation from now capital punishment will be considered a regrettable past wrong, just as slavery or the denial of voting rights to women is now remembered in America.  More importantly, as may already be obvious, there is a distinct moral difference between torture and death which goes beyond aesthetics.  While death is a fact of human existence, and can be natural, dignified, peaceful and even beautiful, torture can never rightfully be any of these things.  It is impossible to view torture as anything other than state-sanctioned cruelty, designed to strip a human being of their humanity, to reduce them to their most bestial state of instincts.  This is a situation where the victims are deprived of their capacity to reason and to interact with other people as moral equals.  It is a situation of moral coercion (which is an oxymoron since morality is a question of free will and human agency and thus cannot be coerced).  Empirically, victims of torture have described this state as worse than death, with the painful psychological effects of their compromised humanity tormenting them for the rest of their lives.  Society does not condone torturous, cruel deaths for convicted criminals for precisely the belief that even criminals have the right to their dignity and humanity, even up to their final breaths.  The distinction between torture and capital punishment is that torture treats individuals as less than human and contemptuously reduces them to that debased state while capital punishment still respects the humanity of the convicted criminal.

A second critical difference between torture and capital punishment comes from the logical sequence of crime and punishment and also answers the argument that imminent terrorists deserve whatever they get, and torture can be considered in part a punishment for their actions.  American society is founded on the basis of equality before the law, of innocence until proven guilty, and of guilt proven beyond a reasonable doubt.  These maxims are meant to ensure that the rights of individuals are protected above utilitarian concerns.[4]  Only after these conditions have been satisfied (a fair trial proving guilt beyond a reasonable doubt) can the state pronounce a Lockean “state of war” against an individual and enact punishment.  Even ignoring the fact that cruelty can never be a rightful action of the state, we must recognize that none of the three listed criteria can ever be satisfied in the practical situations that proponents of torture as a last resort imagine may arise.  The truth is that there will always be uncertainty, and no time for even a semblance of a fair trial in a situation where torture may be “useful”[5].  In the end, until the ticking bomb (the cataclysmic image of choice by supporters of torture) goes off, that act of terrorism has not yet been committed.  There is thus no case for any retributive element or argument for desert when considering the use of torture as a last resort.  Moreover, even convicted criminals and prisoners of war are not stripped completely of their rights, and we still expect a civilized, moral society to treat them with dignity and with respect for their humanity, a principle which torture clearly violates

It is important to note that there remain many empirical questions surrounding the usefulness of torture under the relevant conditions of uncertainty and time-pressure, the ability of our judicial and police systems to administer and enforce a limited regime of torture in a transparent and legitimate fashion, as well as the negative externalities associated with the US condoning torture under any circumstances.  All of this casts doubt on the utilitarian argument for torture as a last resort.  Moreover, Dershowitz himself writes that the “symbolic setback” to the respect for human rights and the strong prohibition against torture for anything less than situations of last resort is the “strongest argument against any resort to torture,” citing empirical evidence that rule utilitarianism is in favor of prohibiting torture under any circumstance.  While this is certainly another argument in favor of absolutely prohibiting torture, it is not the most important one.  The fact is that considerations of expedience do not change moral facts and principles.  Just because something ordinarily proscribed becomes desirable to do under extraordinary circumstances does not automatically mean that it suddenly becomes morally permissible.  Few proponents of torture as a last resort have suggested permitting the torture of innocent people, such as a suspected terrorist’s mother, or spouse and children in the presence of the suspect.  Yet these tactics are likely to be the most efficient in getting valid information in a timely manner.  Clearly there are, at least intuitively, moral limits to the utilitarian argument.[6]  These limits can be attributed in this case to the rights of individuals and the rights of states.

Dershowitz is most compelling when he says that the slippery slope presented by legitimizing torture obliges us to draw “a principled break” on the limits of what can be done.  The reality is that moral principles show us that this break must be a complete condemnation of torture, even if we might hypothesize optimistically that torture might bring about some immediate good, and that two wrongs make a right.  We have to accept that we cannot prevent all terrible events from occurring.  Police officers, soldiers, hostage negotiators or medical personnel often arrive too late to prevent tragedy.  In the case of a terrorist who has (presumably) successfully planned and initiated a terrorist act on US soil, interrogators trying to prevent this attack may be constrained by time, by the law or even by “aesthetics” in what they can do.  I propose that the actions of the state be constrained by the morality of our society, which is founded on the principles of human dignity, equality of rights and presumption of innocence.  If the only possible reactions to an imminent terrorist attack are an abandonment of these fundamental principles, and an abandonment of the legitimacy of the state’s powers, then these actions are beyond what we should expect the relevant authorities to perform.  If some intelligence agent or police officer feels the need to employ torture, let them do so with the clear understanding that they will have to face their day in court to defend their actions against the weight of morality.  

Bibliography

Bentham, Jeremy, Principles of Morals and Legislation, MR 22 Sourcebook, 2005
Dershowitz, Alan, “The Case for Torturing the Ticking Bomb Terrorist,” from Why Terrorism Works, pp. 142-149
Johnson, Robert, “Kant’s Moral Philosophy”, The Stanford Encyclopedia of Philosophy (Spring 2004 Edition), Edward N. Zalta (ed.), URL = http://plato.stanford.edu/archives/spr2004/entries/kant-moral/.
Locke, John, Second Treatise of Government, edited by C.B. Macpherson, Hackett Publishing Company, Inc. 1980
Mill, John Stuart, Utilitarianism, edited by George Sher, Hackett Publishing Company, Inc. 2001


    

[1] Although Bentham argued that only consequences mattered and that conceptions of natural rights were ultimately rested on the utility of the outcomes, his principle of having no person’s utility worth less than the next person’s implicitly invokes considerations of equality and human worth that are the starting point for many, if not all, rights-based moral theories.
[2] Mill argues that all religious morality can be shown to correspond to utilitarian principles, but whether or not this is true, the fact is that while a belief can be shown to correspond to any number of systems of ethics, the critical one is the system that the believer accepts as the basis of their beliefs.  As an illustrative analogy, economists can develop many compelling theories of why someone trusts a certain company or buys a certain product, but what matters is what the individual in question actually thinks or believes.  I suspect that few religious people would accept that their beliefs stem solely and ultimately from utilitarian concerns.
[3] On this point Kant would say that the victim is clearly being treated only as an ends for the torturer’s goals and that the victim’s humanity is being ignored or overridden in a disrespectful manner.  This would be a clear violation of the Humanity formulation of Kant’s Categorical Imperative, which is the basis of our moral duties in a Kantian system.
[4] For example, while utility may be maximized by incarcerating a violent murderer, if it is at the cost of incarcerating another innocent person, moral principles dictate that this is an unacceptable and unjustifiable bargain.
[5] Additionally, it has also been argued that in reality torture usually achieves little in terms of generating useful information because trained victims know how to resist and confound torturers for long enough that their secrets lose their relevance, while untrained victims will simply say anything to end their misery, which equally confounds interrogators.  All this puts serious strain on the utilitarian principle as a general justification for an institutional system of torture under any circumstances.
[6] This is something neither Bentham nor Mill would have recognized, although Mill would have argued that there can be greater utility in the long-run or in the larger sense as a result of accepting lower utility in individual, limited situations.

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