Is Torture Morally Permissible?: Part I

Is it ever permissible to torture a human being? If this is so, under what conditions is this permissible. In the next two posts, I will try to defend the view that torture is indeed permissible in view of certain prerequisites, the most important being the consideration of the safety of others involved — in other words, will harm or death result to other people if the person in question, a terrorist or some other guilty party presumably, is not tortured? In the first I will try to ascertain a consistent and rigorous enough account of torture to, hopefully, meet most people’s expectation of the actions that comprise torture. In the second I will apply this definition to a series of cases involving torture and argue that under these circumstances, torture is morally permissible and socially responsible.

Thus, as I promised above for the first account, it will be necessary to establish some working definition of torture, as the uses of the term can vary based on one’s understanding and beliefs. A seemingly reasonable starting assumption is as follows: torture is the intentional inflicting of pain or distress on another person. Now to see whether this definition will fit the crucible of common sense, let us apply it to a current discussion of torture.

There is an ongoing debate, for instance, as to whether certain actions such as water-boarding constitute torture. One can hold the belief that torture is wrong while rejecting the belief that water-boarding is wrong, on the condition that one also believes that water-boarding is not torture. On the previous definition of torture, such a belief will be strictly inconsistent, for the assumption there was that ANY intentional infliction of pain for whatever reason will be torture. Yet this will not hold for at least a few cases. When I pinch someone, for instance, perhaps a friend or a family member, does this imply that I’m torturing them? While I am indeed inflicting a minor degree of pain on them, to answer in the affirmative would seem absurd. So would, but to a lesser degree, classifying the spanking of a child as torture seem to use the term in a way that would not make sense to most people. Thus it would seem that the infliction of pain simpliciter would not be enough to be considered as torture.

The default position, in light of the distinctions we’ve made, would seem to be that torture differs from other inflictions of pain in quantity alone. This would certainly work in the favor of advocates for certain “enhanced interrogation techniques,” as there the infliction of pain or suffering does not seem that great in comparison with interrogation methods that no one (or almost no one) would argue are not torture. Since drawing a line as to which actions are or are not torture would be arbitrary –  it would be ridiculous to classify torture as ( x ) amount of pain, where ( x ) is a quantity that could readily be measured — one could only make a distinction based on comparisons of certain actions that were unambiguously considered torture, e.g., the shoving of bamboo sticks beneath one’s fingernails.

This principle, however, also seems to be unsatisfactory for a number of reasons. Say, for instance, that a vicious serial rapist uses powerful anesthetic drugs in order to subdue his victims so he can sexually abuse them without their fighting back. Our common sense would suggest to us that the rapist abused the victim in one way that would fall under the descriptor we used to determine what torture is: he has inflicted both physical and psychological pain on his victim through his actions. Yet there is a problem: if the rapist’s victim is unconscious or barely conscious (let us assume for argument’s sake that it is the former) for the time that the rapist is abusing them, then it is arguable that the rapist is not torturing the victim as the victim does not in fact feel physical pain. To contest this account, one would have to demonstrate that one could experience pains in an unconscious state. As pain, from a scientific perspective, is the phenomenal feeling associated with actual or potential tissue damage, or described in terms of such damage, it would seem that any plausible candidate for an account of unconscious pains would be ruled out on this basis. While I do not deny that it is certainly possible that one could experience unconscious pains, I also think that the onus of proof is on the person who wishes to prove this.

There is, moreover, another difficulty in accepting the contention that torture is the intentional infliction of a high degree of pain. Let us return (though not joyfully) to the rapist from above. Imagine, further, that in addition to anesthetizing his victims during his sexual exploitation of them, the rapist also keeps them in a constant state of unconsciousness — or unawareness — through the use of the powerful anesthesia  he uses to rape them. Whether such drugs actually do exist at the moment is hardly relevant — such drugs can easily be imagined as existing, and the actual existence of date-rape drugs, in which the victim is in a stupor as to what’s going on, is evidence enough that the scenario is morally relevant.

Now, if the victim is never or barely ever conscious of their abusers actions, it would seem plausible to conclude that they cannot suffer psychological pain for the time that they are subject to this extended abuse. What I mean by this is that the victim, in light of their present circumstances, cannot know that they are being abused and cannot have really any coherent idea of what is happening to them. Thus it would seem that the victim is not suffering from psychological abuse, as a strong precondition of psychological pain is a general awareness of oneself at the present. (I do not say that psychological pain requires awareness of the harm or abuse one has suffered because one might have suffered from some traumatic event that one does not have present knowledge of, but which is the cause of present anxieties or emotional distress). As the imaginary victim has not suffered (conscious) physical or psychological pain at the hands of his abuser, it would seem to follow that the rapist has NOT tortured his victim. For anyone who believes that rape is a serious — perhaps the most serious type of — abuse a person could endure, this principle is unacceptable. Yet, if one rejects this scenario, one must also reject the notion that torture is determined by the quantity of pain alone in relation to cases that are unambiguously cases of torture.

Following the rejection of the previous two accounts, what could offer us a plausible candidate for the definition of torture? To provide such a candidate, we would need to give an account that escaped the objections above and that would still serve as a satisfactory account on its own. I think the following might provide such an answer that is needed. When we say that someone is tortured, pain or discomfort or abuse inevitably has a role. Yet this does not exhaust the circumstances in which torture takes place. We do not say that a policeman commits torture when he beats a rioter to submission who is trying to harm or kill him. Yet we would consider the policeman to have tortured the rioter if he beat the rioter while he was protesting peacefully and continued to beat him while he was defenseless. Beginning with this most recent example, let us enumerate some general principles that account for what torture consists in.

1. Thus, from the policeman-rioter example, the first condition of torture will be that the person tortured is in a position of vulnerability in which they are physically incapable of resiting their abuser.

2. The second will, I think, be that the torturer is inflicting pain or harm that is not conducive to the overall well-being of the individual who is tortured — for example, we do not say that the surgeon tortures his patient because they are anesthetized and incapable of resisting him as he inflicts physical harm on their tissues, as the doctor does this according to the patient’s will in order to benefit them.

3. This leads to the third principle — that the suffering inflicted is not voluntary, in the sense that the person tortured, if they were in their right mind, would not consent to the suffering they are subjected to. This last principle is important because it permits us to avoid the difficulties of the rapist-victim scenario detailed above — rape by its definition cannot be voluntary.

4. The fourth and final principle is that the person who suffers does so over an extended duration of time. (This can inevitably vary based on the torture inflicted: flaying someone alive would take a comparably short period of time in relation to other methods of torture, but would nonetheless be a long period relative to the harm inflicted — from the perspective on the flayed person, this would most likely seem to take much longer than it actually would.) We would not claim that a doctor who killed his unconscious patient by poisoning tortured them unless their death were to take an unusually long period of time.

While I do not claim that these four principles are not exhaustive in the sense of accounting for each and every instance of torture, I feel that they are able to avoid the above objections while accounting for the vast majority of cases and perhaps providing for some room for borderline cases — I mean that such cases could not ipso facto be ruled on one side of the fence or another, as it were, but would require some serious deliberation as to how they would be classified.

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