Coercive Interrogation: Legal vs. Moral Prohibitions

by Adrian Vermeule

In Terror in the Balance, we put aside the view that there is an absolute moral prohibition on coercive interrogation necessary to save third-party lives. For one thing, we claimed, it is very hard to find moral philosophers who defend that view; most waffle, in the end, by adopting some variant of the view that there is a “catastrophe” exception to the moral prohibition, so that if enough lives are at stake a utilitarian override kicks in. Roger Alford, our gracious host, suggests (among other things) that we radically understate the appeal of absolutism. He points out that the McCain Amendment and various sources of international law create an absolute legal ban on “torture,” of which coercive interrogation is a subset.

But this point conflates the moral question with the legal question. There is no doubt that most people believe that coercive interrogation should be illegal, and indeed it is; but they also believe that it would be morally permissible or even obligatory for officials to torture, in some vaguely defined set of extreme circumstances, at least if those officials openly take responsibility for their actions and throw themselves on the mercy of juries and the public. McCain himself, in an article in Newsweek, wrote that torture should be illegal, but that in an “urgent” ticking time-bomb case “an interrogator might well try extreme measures to extract information that could save lives. Should he do so, and thereby save an American city or prevent another 9/11, authorities and the public would surely take this into account when judging his actions and recognize the extremely dire situation which he confronted.” In this, our guess is that McCain speaks for many Americans. (In the Pew Research Center poll that Roger links, “15 percent of respondents said that the use of torture against suspected terrorists in order to gain important information can often be justified, while 31 percent said it is sometimes justified, 17 percent said it is rarely justified and 32 percent said it’s never justified.” So despite the legal ban, 63 percent believe that torture is at least sometimes justifiable; we read this to mean morally justifiable.)

We label the view that McCain defends the OAF view — “Outlaw and Forgive” — and our objection to it is not that nobody holds it, but that it is bad in various ways: self-defeating, unstable, and socially undesirable. There is no need to repeat those points here. Conceptually, however, the undoubted legal prohibition on coercive interrogation does not show that anyone holds the absolutist moral view. Law and morality are not coterminous, in general or in the debate over coercive interrogation.

5 Responses

  1. And therefore your proposal is . . . what, exactly, Adrian? That the Congress enact a law authorizing torture in some cases? That the President announce a willingness to torture notwithstanding the absolute bans established by statute, treaty, and the laws of war? That the President establish a bureaucratized torture regime — let’s call it the “black sites” program — in which the CIA can engage in institutionalized torture, despite these legal restrictions?

    Just to be clear: No one — no one — in Washington is proposing any such thing. Not Duncan Hunter. Not Rivkin and Casey. Not even Dick Cheney and David Addington. Recall that even this President goes around virtually daily insisting that we do not torture. Why the uniform resistance to your proposal (if I understand it correctly)? Well, mostly, because to do this would mean the United States becoming the first nation in history to openly and expressly breach the Convention Against Torture and the Geneva Conventions (at a minimum).

    Are you recommending such an open breach — something that, I repeat, has no constituency here, even among the Jack Bauers of this town? If so (and sticking here purely to consequentialist arguments, although I think they are hardly adequate or helpful in this context), have you taken into account what might transpire in all other nations, with respect to these treaties and others, if the U.S. were to take such a momentous and unprecedented step with respect to these international instruments and one of the few norms on which we have been able to secure universal agreement?

    Where I think I agree with you is in this: If we don’t legalize torture and breach our treaty obligations, it is “self-defeating, unstable, and socially undesirable” — not to mention wrong, unlawful, and a violation of the President’s constitutional obligation to faithfully execute the law — to continue to engage in torture and other cruel treatment prohibited by Common Article 3 whilst unconvincingly insisting all along that we are complying with the law. Do you agree with this? If, say, the CIA black sites program recently described by Jane Mayer is obviously unlawful in numerous respects, as I think it is, and if Congress does not expressly authorize torture and cruel treatment in specified circumstances, should the President go ahead with it anyway, or shut the program down?

  2. So sorry, but you can’t just ‘put aside’ the deontological view that torture is prohibited in any and all circumstances. It is entirely incorrect that there is only very few moral philosophers or other people, for that matter, who defend that view. This is not just a moral precept, but is also an axiom of international human rights law, and every single democratic state swears by it.

    But, as Marty put it, what exactly is your legal claim, even if we were to accept your consequentialist view of morality. Just forget terrorism for a moment. Would you, for instance, allow the police to torture a suspected, or no, an admitted kidnapper, as it’s just that man’s suffering weighed against an innocent child’s life? Does this work, legally or morally?

  3. Adrian,

    That’s helpful. But my sense from reading the book is that the “outlaw and forgive” approach (p. 176-80) is not what you are advocating in the chapter on coercive interrogation. I thought you are arguing for authorizing the practice of coercive interrogation and regulating it ex ante. The “outlaw and forgive” discussion focuses on presidential disobedience of laws in the national interest, like Lincoln’s suspension of the writ. But as you suggest on page 177, that approach does not work for ordinary officials like soldiers and police officers, who are not given the right incentives to disobey laws. So are you saying ordinary soldiers should disobey these laws and seek ratification of their coercive conduct, or that the laws should be changed to authorize the practice? How would the “outlaw and forgive” approach work in the context of coercive interrogation, where only low-level officials will be engaged in the unlawful conduct?


  4. I have argued against torture in the same vein as a violation of positive law. It can also be based on a moral view but we are in law here. Given the absolutist position in the law on this I fail to see anything coming from this discussion that warrants taking the thesis seriously. If the goal is to use weasel words to get people to step off the absolute prohibition, it fails. If it is to serve as a sohpisticated apologia for the choices of the Bush Administration, it also fails. It seems to reflect once again this U.S. foreign relations law fascination with some type of uber-President who does no wrong. It is so exceedingly naive and tragic that persons appear willing to argue these things. Hope it sells books, but it seems to me that more than books are being sold in this kind of analysis. Law professors – Carl Schmitt must be smiling.



  5. I only have a couple of points to add to the excellent posts above. First, only under a very crude form of utilitarianism would torture be considered morally acceptable. Have either Vermeule or Posner heard of the distinction between act utilitarians and rule utilitarians? Most utilitarian philosophers are in the latter camp. So even among consequentialists, there is moral agreement about the necessity for an absolute prohibition against torture.

    Second, considering that Posner are two of the only individuals I can think of who came out in defense of the Bybee/Yoo Torture Memo, it should hardly be surprising that they are trying to make the no torture position seem extreme and impractical. See here for more.

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