Absolute Prohibitions of Torture

I wanted to respond to a key section of Posner and Vermeule’s book rejecting absolute prohibitions of torture. They argue that very few moral philosophers have held to the position that coercive interrogation is absolutely impermissible as a violation of rights rooted in human dignity or autonomy. As discussed in the previous post, they suggest that an absolute prohibition, or even one with a catastrophic threshold, is unpersuasive. They argue that a more convincing approach is to treat coercive interrogation the same we that we treat other coercive measures of the government. “It is fanatical on deontological grounds that rights against coercive interrogation should not be overridden to prevent serious harms to others.” (p. 187).

What I like about their argument is that they put the moral question in starkest of terms. At bottom the tragic choice they posit is “Shouldn’t we authorize the commission of one act of torture to save several lives?” Put in those terms, it is not an easy question. But I think there are valid deontological responses.

In my view, at a minimum, the absolutist position deserves greater respect than they provide in their book. In particular, I think it is quite inaccurate to say that few hold to this position. The political majority in the United States holds to this position, as reflected in the McCain Amendment. The military forces reflect this absolutist position in the Army Field Manual 2-22.3. Over seventy-five countries accept this position as signatories to the Convention Against Torture. Coercive interrogation as a technique in purely domestic criminal investigations is likewise prohibited by law, despite the fact that the moral dilemma they pose could apply with equal force in that context. And a 2005 opinion poll in the United States indicate that 32 percent of respondents said torture against suspected terrorists is never justified. All of these are expressions of moral and legal conclusions that coercive interrogation is never justified. Rather than reflecting a “fanatical” position, I would suggest the norm is that coercive interrogation is not on the table for trading.

Second, Posner and Vermeule argue that coercive interrogation should be treated like other forms of coercive governmental practices, such as lethal force by police officers, wartime killings, and capital punishment. That is, like those other coercive practices, torture should be authorized in very limited circumstances and regulated ex ante. But torture could (indeed does) fall into the category of coercive governmental practices that are subject to prohibition, not regulation. These include the killing of wounded soldiers, the use of landmines that inadvertently kill innocents, the use of forced labor, and the use of cruel and unusual punishment to deter and punish criminal offenses. All of these fall within the liberty-security frontier and yet they are not accepted as legitimate part of any tradeoff between liberty and security.

Third, Posner and Vermeule simply assume that torture is a lesser evil than, say, the use of lethal force by police officers. They reason that if it is permissible to kill a person to save many innocent lives, it follows a fortiori that coercive interrogation would likewise be permissible in those circumstances. I genuinely wonder if that is so. As the Supreme Court has stated in Trop v. Dulles, “[w]hatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment … it cannot be said to violate the constitutional concept of cruelty. But it is equally plain that the existence of the death penalty is not a license to the Government to devise any punishment short of death within the limit of its imagination.” What I think the Court is getting at is that some punishments may be as cruel, indeed more cruel, than death itself. As a heuristic device, ask yourself which would you fear more, being burned at the stake just short of expiration of life, or a painless lethal injection that results in death? The answer is not obvious.

The essence of the absolute prohibition is, as Posner and Vermeule suggest, a concern about human dignity. Some things cannot be traded, even though the consequences of that position are great. In some respects the discussion in chapter six of the book paints Posner and Vermeule as situational ethicists in which there are no moral absolutes, only general welfare maximizing opportunities. I seriously doubt that Posner and Vermeule actually take this position, which historically has been used to justify infanticide, slavery, and similar evils.