Is Torture Morally Permissible?: Part II

As I promised in Part I of this continuation, in the present post I will try to demonstrate that torture can be morally permissible in light of certain circumstances. Following my attempt at framing a viable definition of torture, I will explore a number of scenarios relevant to the discussion on torture and human dignity in order to discern in which of those would torture be morally acceptable.

Before I set out on this undertaking, I would like to bring consideration to the way in which Western society approaches the term ‘torture.’ Torture’ is understood to be akin to ‘murder’ in the sense that it excludes any possibilities of moral justification. If I admit to murdering someone, then there can be no defense for my actions (as understood on the level of Judaeo-Christian morals). In a similar vein, mutatis mutandis, it is assumed that if I torture someone, then there can be no defense for my actions.

There is a serious difficulty associated with this analogy, which I will now take the time to explore, as, I believe, the present case has some importance for our current discussion. Against the prohibition on killing, one can defend one’s taking the life of another based on a distinction between one’s intentions toward the person who was killed. Self defense, for instance, is perhaps the first case that comes to mind; if someone attacks with me the intent to harm, then most would agree that I am not committing an intrinsic wrong by defending myself, even if my actions result in the death of my attacker. Other cases include accidental killings; while we often consider the person to have some degree of culpability in the death of the person in question, we do not place on them the same degree of blame as if they murdered someone. What do we mean by murder? Most, I think, would agree that murder consists in the premeditated and intentional killing of a human being. (For argument’s sake, let us disregard any inherent problems associated with this definition.) Intention, therefore, is the key underpinning of whether someone commits murder. Now let us apply this same analysis to our considerations of torture.

In the last post on this topic, I provided what I take to be a working definition of torture. For the sake of the reader’s convenience, I will provide a brief recap of that four part definition:

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. 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.

Now, in order to apply the same criteria used for explaining how killing can be considered not murder, we would have to examine what circumstances would permit actions akin to torture that were not really torture. In other words, we would have to describe how someone might go about the actions involved in torture without in fact torturing someone.

Yet I will be the first to admit the limited prospects for such a project. How someone might go about the actions involved in torture without in fact torturing someone would involve a degree on mental gymnastics for which I do not believe human beings to be capable. For notice that the key component to establishing one’s innocence in most cases of killings not murder involve a plausible degree of ignorance. It does not seem very likely that I could lash, burn, freeze, suffocate, or induce fear to a restrained person without in fact knowing about it. One could similarly dismiss cases of accident as well, for it is not common that I find myself in the circumstances of 1 – 4 by chance alone. To conclude this immediate line of thought, there is something very odd about comparing the regrets of killing someone but not murdering them with applying the actions of torture to someone without torturing them: the “I am terribly sorry that I killed that person; it was by accident” does not seem analogous to the “I am terribly sorry I applied the circumstances of torture to that poor fellow; it was by accident.”

Perhaps one might reasonably claim that the two types of actions — murder versus killing and torture versus applying the circumstances of torture — unfairly conceals a key difference between the manner I have set the types of actions in opposition. The rejoinder might go something like this. While murder involves a fairly contiguous association of facts — a premeditated intent to kill — torture, as defined here, involves yet another set of fairly contiguous facts, i.e., the list 1 – 4. As the construction of the analogy goes, one can kill someone without fulfilling the criteria necessary to murder someone. On the other hand, the argument advanced for torture does not allow for any neat distinction between torture and actions akin to torture. In order to torture someone, I would have to fulfill 1 – 4 while INTENDING to do this; in order to commit an action akin to torture, I would have to fulfill 1 – 4 while NOT intending to do this. Thus, in constructing the argument in this manner, one would by definition not permit opposing examples.

I would reply with the following. In order to bear a sufficient resemblance to murder, legitimate killing would imply that the result of the actions are the same — that is, that the person in question dies. What differs in the two cases might be either the specific actions of the killer or his intent, but the key component to the relation between killing and murder is that they produce the same effect. Likewise, in order to bear a sufficient resemblance to torture, one who committed actions akin to torture would have to be responsible for actions that resulted in the same consequences of torture — that is, the suffering consistent with torture (Despite initial appearances, this answer is not question begging. As I tried to explain in the first post of this series, the suffering associated with torture cannot be the same as suffering or pain in general but a particular type of suffering or pain.) If I wish to make a fair comparison between the two, then I must compare them based on their consequences. For, if I were to insist on comparing pain in general with death in general, insofar as the similar actions tended to their respective results, then I would be claiming that there was no genuine distinction between the actions associated with torture and the inflicting of pain in general, which seems to me to be unequivocally false.

Now this type of suffering is specific to the conditions of the criteria of 1 – 4, and thus it is difficult to conceive of how they could be substantiated unknowingly. Yet this point reveals another difficulty with the killing/murder analogy to the torture/actions akin to torture one. The killing/murder analogy works because the results of killing in comparison to murder are sufficiently similar, i.e., they are the same. The torture/actions akin to torture analogy fails because it does not capture the specific distinction between suffering simpliciter and the specific suffering produced by torture. One can inflict pain or suffering on another person without torturing them or without ‘appearing’ to torture them. One cannot, however, murder someone without killing them or kill them without killing them.

Now that we have answered the present objection, I will continue to argue that the murder/killing analogy with the torture/actions akin to torture one does not stand. My first concern will be to show, as I discussed above, that the distinction between actions akin to torture and torture itself is false. For it is not clear how one might proceed through actions 1 – 4 without treating someone in which a manner as to torture them. Perhaps to help us illustrate this difficulty, it would be useful to provide an example from contemporary debate on the permissibility of torture.

As has been infamously recorded, interrogators at Guantanamo Bay got around the current U.S. laws against the use of torture through a then current loophole. The techniques employed by interrogators — such as cramped confinement, wall standing, and muscle fatigue — do not qualify as torture as such; at most they are uncomfortable. So argued the white house legal counsels at the time. As for the more controversial techniques, such as water-boarding and sleep deprivation, the ambiguity as to whether these actions constitute torture or not begins to decrease in proportion to the likelihood of permanent psychological damage in the case of the former or permanent brain damage or even death in the case of the latter. The key interpretive component to this reading of the law is the term ‘intent.’ Basically, something is only torture if the person who is doing the torturing intends to cause physical or mental anguish. From a practical standpoint, this can lead to many problems. The interrogator might honestly believe that what they are doing will not lead to physical or mental anguish on the part of the suspect in question. The difficulty, however, lies in detecting when the interrogator does in fact believe that their actions will cause physical or mental anguish. What test might one pose to determine whether one is telling the truth?

Now, as discussed above, it would seem patently odd for someone to go through all the motions of inflicting torture on another person and still claim that they were not inflicting torture on this person. Notice, moreover, that none of the four criteria I described mentions that one must intend to inflict physical or mental anguish on someone in order for their actions to constitute torture; the actual act of inflicting it is enough. To torture someone is the equivalent to going through the actions of torturing someone; there is no distinction between torturing someone intentionally and torturing them by accident. Torture, as we have defined it, requires a very special contiguity of actions to be considered as such. In other words, if someone does indeed go through the actions of torturing someone, then we should doubt them if they were to claim that they did not intend to inflict physical or mental anguish in so doing what they were doing.

Though I disagree with any account that tries to minimize certain actions akin to torture as not torture, this does not imply that I would consider such actions to fall under the rubric ‘torture’ as universally condemnable in all circumstances. To inflict physical or mental anguish in most cases, but that does not entail that it will be wrong in all cases. As we have shown above, there is no good reason to believe that the term torture is always wrong in the sense that murder is always wrong. In Kant’s language, ‘murder is wrong’ is an analytic judgment in that the term murder will always imply wrongness. Yet, as argued above, this is not the same case for torture. But even if one accepts my argument on this point — that the term ‘torture’ does not imply that an action is automatically wrong — I realize that this does not prove that there are actual cases in which torture is not wrong, but only that the phrase ‘there are some occasions when torture is not wrong’ will not imply an immediate contradiction.

What instances are there in which torture is morally permissible? I would describe the following as matching this criteria. Imagine that terrorists have planted a significant amount of explosives in a highly populated area. They are threatening to detonate the explosives to show government officials that they mean business. Government officials and police take one of the terrorists into custody. At the time they take the terrorist in for questioning, there is approximately 1 hour before the bomb goes off (more accurately, there is an approximation that the bomb might go off in an hour, but it will go off for certain sometime soon). The officials only know that the bomb is planted somewhere in New York City; they don’t know what part of the city.

In such a case, I would argue that torture is not only morally permissible, but that not to torture the terrorist would be morally condemnable. If to inflict torture on the terrorist is the only way to get him to talk given the time constraints imposed, then to use torture would seem the only responsible thing to do to prevent the loss of innocent life. Such action as torture in this instance cannot be considered just in an absolute sense — in an ideal setting, we would not have to torture anyone — but I would definitely consider it just in light of the present circumstances. One also cannot protest too greatly the degree of pain or suffering that is inflicted. That the very debate of whether certain enhanced interrogation techniques were torture or not seems to prove that they are not as onerous in the agony they inflict as are other methods of torture. In light of the potential death and destruction that could result if one were not prepared to endorse such techniques, their use does not seem that great a crime in comparison.

One might reasonably protest against this example. The charge might go something like this. Such a case as the one described are too clear cut in simple to really capture the complexities involved with the decision to torture someone. We do not always know of an immanent terrorist attack, nor do we always have such a clear picture of the facts when we do anticipate one. How, then, is this example supposed to provide a justification for torture when we are mostly ignorant of when using torture would actually be effective?

My answer is as follows. True, we do not always know when terrorists will attack, nor do we very often have a clear idea of their plans. Yet, if we did find ourselves in the circumstances that I described, then it would seem to follow that we do in those circumstances have a moral justification for torturing the terrorist. Nor would it be consistent with this principle to ignore the threat of an attack in general if one found oneself under siege from potential or actual terrorists. In other words, if it were clear that the populace of a country were in immanent danger from attack, then government officials could not hide behind a veil of ignorance for doing nothing to prevent the attack. The hopes of merely stumbling upon a terrorist seem so low as to be comical if used for the government policy of hunting them down. An active search and vigilance is required on the part of the government, not merely a pledge to torture terrorists, if they threaten to kill civilians, if one happens to come across one.

In endorsing an approach as this one, I understand the dangers inherent in permitting officials to use torture as an accepted means of obtaining information. To reduce the genuine abuses that would occur under such endorsement, I would propose the following guidelines:

A. That only comparatively moderate suffering, as consistent with techniques used at present, be inflicted upon the party in question.

B. That such techniques be applied only on those believed to possess vital information necessary to protect innocent lives and in direct proportion to the importance of the information they are suspected of possessing.

C. That those who abuse prisoners for reasons not consistent with B be punished severely for their actions.

D. That torture be applied universally or without exception only to top ranking terrorist officials or leaders and only when the organizations they represent have made explicit threats against the lives of innocents.

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