Coercive Interrogation: Legal vs. Moral Prohibitions
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.