Is Torture Always Wrong?

by Roger Alford

Jeremy Waldron continues to do incredibly interesting philosophical work on questions surrounding torture. He recently posted a short, accessible piece on moral absolutes that is a joy to read. What I love about the piece is that he embraces the absolute prohibition against torture, but then is brutally honest about how hard it is to defend that position. “The real difficulty with moral absolutes … is not the difficulty of imagining the commandment. It is the difficulty of making sense of our sticking with the commandment even when so much of value is stacked on the other side.” He offers Jeremy Bentham as the author of the supreme ticking time bomb hypothetical:

“What Bentham does is wait until the absolutist has given his best and most horrifying characterization of the evil tat he has set himself absolutely against, and then Bentham takes that very description and puts it in the scales on the other side. Torture is forbidden because it is so brutal; but what about instances where it is necessary in order to prevent a hundred cases of exactly such awful brutality? Violation is awful, but what about cases where violation is necessary in order to prevent a large number of exactly such violations?”

In other words, if torture is so bad, then should we commit one act of torture to prevent a hundred, or a thousand, or a million acts of exactly that same torture? Moral absolutists, Waldron argues, must “explain how those who take seriously the alleged prohibition are to be relieved of the burden of responding to the cases on the other side, cases that seem to involve exactly the same concerns as those that motivate the absolutism.” If we want to get all fanatical about torture, then what should we do when the scales tip so strongly toward torturing to prevent more torture? That is the ultimate challenge for moral absolutists.

He then presents five possible responses to this ultimate ticking time bomb scenario, all of them tentative and inconclusive at best:

(i) “You Leave it to God” –We have been commanded not to do this, whatever the consequences and one should let God or whoever the commander is take care of the consequences;

(ii) “Other people’s responsibility”–Responsibility for the consequences that tempt us away from the moral absolute is properly assigned to those who set up the situation;

(iii) “Tainted goods”–A violation of the absolute rule against torture means that the goods we secure thereby are objectively tainted on account of the immoral methods used to achieve them;

(iv) “Rules of the game”–We insulate the rules from goal-based considerations and thereby treat the rules of the game as absolutes;

(v) “Threshold deontology”–Certain moral rules are near absolute but one may abandon them when the consequences piling up on the other side pass a certain threshold.

Good stuff. It’s a nice short piece that complements his other work on torture, that is worthy of serious deliberation. He admits there are no easy answers to these questions, but I’m thankful we have folks like Waldron analyzing them.

http://opiniojuris.org/2011/10/13/is-torture-always-wrong/

14 Responses

  1. Thanks for this, Roger.  Jeremy is truly brilliant, but the problem I have with moral philosophers is that they can eschew epistemic issues in favor their preferred facts.  This makes the moral reasoning clearer and their argument more persuasive but also much less valuable in the real world.

    Let’s use the example above: “Torture is forbidden because it is so brutal; but what about instances where it is necessary in order to prevent a hundred cases of exactly such awful brutality? Violation is awful, but what about cases where violation is necessary in order to prevent a large number of exactly such violations?” 

    A key issue in every case is how certain we are that our acts of torture will prevent the “greater wrong” we seek to avoid.  To put it in the more typical ticking time bomb scenario: How do we know the terrorists will tell us where the ticking time bomb is if they are tortured?  Will they lie?  Can they be “broken”?  For that matter, how do we know that they know where the bomb is? 

    It might be easier to defend moral absolutes when we consider the plethora of questions surrounding the actual efficacy of breaking them in any given case.

  2. John,

    I understand your concerns, but I don’t think they bother the folks like Waldron who are trying to test the outer boundaries of the proposition that torture is always wrong.  He is trying to see if he can sustain his position of moral absolutism in the face of uncontested evidence that hundreds will be tortured unless I torture.  

    You are of course correct that a legal philosopher’s hypothetical  will rarely be replicated in the real world. That is a different issue form the one Waldron is trying to address.  That is not to suggest that Waldron’s work has no practical relevance.  If one concludes that it is always wrong no matter what, the consequentialist argument that lives will be saved (or might be saved) is answered.

    Roger Alford

  3. I would think that a much easier way through this is to read an Ali Soufan (FBI Interrogator – The Black Banners) or Glenn Carle (CIA Interrogator – The Interrogator – An Education) and understand that the only reason a Waldron is spending time on this issue is because of the unwillingness of Americans to actually address hihg-level accountability for torture that was done on Presidential order (see Carle for the background). 

    In the physical real world both of them are categoric about the utter uselessness of the enhanced interrogation techniques they were asked to  do.  They describe them as this 1) if the person answers with something, they are cooperating, 2) if the person says they do not know the answer, they are not cooperating and therefore must be made subject to the techniques.

    One approach is having  the interrogator come in and say “Tell us what we want to know.” and then leave.  If the person does not respond EIT’s are applied and the question is repeated.  The glass ceiling in all this was waterboarding and the number of times the glass ceiling was met shows just how ineffective the whole stupid process was.  Now there is a psychologist named Mitchell from Texas who got the contract for all this and boy he made out like a bandit.  But it was all worthless and evil.

    Waldron may enjoy exploring this further aspect – as may we in discussing it in this space – but what pains me is that this type of reflection spins the thoughts another way but does not lead to accountability.  It leads to a kind of illusion of accountability by the fact that we talk about accountability.

    So it goes in America in 2011.

    Best,
    Ben 

  4. Ben,

    You need to think like a legal philosopher and assume the utility of the act in order to test the hypothesis.  If you change the facts–torture never works–you don’t ever reach the question of whether it is always wrong.  

    Waldron is a moral absolutist who believes torture is always wrong.  Yet he is willing to concede that it is not easy to answer why it is always wrong in every situation.  He is seriously trying to wrestle with the question, and I applaud him for doing that because if he can make the case, then it is an important response to utilitarians. It is much more effective than simply saying it never has any utility, because that is an evidentiary argument, not a philosophical argument.

    Roger Alford

  5. Kim Scheppele has already said most of what’s important in debunking the utility of the ticking time bomb scenario as tool relevant to the reflective equilibrium here:
    http://www.jnslp.com/2005/12/15/hypothetical-torture-in-the-%E2%80%9Cwar-on-terrorism%E2%80%9D/

    Ultimately, it’s an extreme thought experiment which is of dubious value given it assumes perfect information and causality, and its work on our intuitions depends entirely on instantiating the decision-maker in a single individual, rather than the reality of various imperfect actors bound by institutional rules.

    Also, the fact that there has never in recorded history been an episode anything like this situation should give us great pause about assigning so much weight to this hypothetical. So too should the testimony of hundreds of real FBI and military interrogators who know enough to say torture does not work as effectively as other time-tested techniques, such as trust-based and psychological shock paradigms of interrogation, as well as tough methods of a lower intensity, such as isolation and sensory deprivation, that have been highly effective at yielding actionable intelligence with far fewer false positives than torture. These techniques also have the added benefit of not being absolutely corrosive to force function and civilised society, as per Mark Kleiman.
    http://www.samefacts.com/2005/03/crime-control/more-on-volokh-torture-and-retribution/

  6. Will,

    Like Ben you are missing the point of legal philosophy questions like this.  You create a hypothetical that is not replicable in the real world because it is extremely useful to test the theory at the outer margins.  The point is not whether there would ever be a real ticking time bomb scenario like what Bentham might propose.  The point is to assume such a scenario, and work out your conclusion based on that assumption.  It should not be this hard to understand why a legal philosopher is willing to engage in such hypotheticals. 

    Roger Alford

  7. Okay, I take your point Roger. I didn’t read your earlier comments before posting (always a faux pas) and at least one was delayed by approval or something. So I can see some value in teasing out all these issues in a structured way. Anyway, I’m at least intrigued enough to read the paper, thank you.

    My jumping the gun probably also reflects the simple fact that I’m already convinced of the deontological and consequential case against institutionalised and ad hoc torture, which settles the issue of practical, personal and political morality for my money. If I’m honest, I’m also a bit tired of this particular hypothetical, because of other papers which have been poorly contextualised and permissive in their purpose. But that’s no reason to pre-judge Jeremy Waldron’s work.

  8. Regarding Mr. Dehn’s question, data on the effectiveness of torture can be collected by those willing to engage in the practice.  This is something that can be addressed empirically.  Of course, such data is only useful for a utilitarian analysis.
     
    Practically, we stand at the twilight of torture as a method of interrogation, simply because of technology.  As knowledge of the human mind expands, the interrogator will be able to pull the information they want from the suspect without such primitive methods.  This isn’t so far in the future… already pretty amazing strides are being made in the field of cybernetics and brain imaging, which will eventually lead to these techniques.
     
    That will, at the very least, change the argument.

  9. Shorter Roger Alford (in the comments): Think like a philosopher, people! Of course philosophy is totally divorced from reality and therefore will have no bearing on or relevance for the real world. Never mind that we’re intellectually masturbating. It feels good!

  10. None of this seems particularly new or interesting or original.  The standard moral/philosophical debate on torture has covered this ground before.  I don’t understand why you are speaking as if you just discovered something insightful or why you think Waldron is all that brilliant on this particular question.  You could have highlighted any number of philosophy-minded academics on this question who are not as popular or hold positions that are not as prestigious as Waldron.

  11. == If we want to get all fanatical about torture, then what should we do when the scales tip so strongly toward torturing to prevent more torture? That is the ultimate challenge for moral absolutists.==

    The problem with such arguments is that they are viewed from the position of an almighty U.S. torturing colored people overseas. The risk of being tortured for the thinker is zero. But what if Al-Qaeda tortured Jenna Bush, George Bush’ daughter, in order to prevent the torture in Abu Ghraib or on Guantanamo? Would that still be an dilemma to the moral non-fundamentalists?

  12. Or a real ticking time bomb hypothetical: Obama might have information on an imminent Israeli attack on Iran. Torturing him to deliver the information might save the lives of countless Iranians. Would that still be part of the dilemma of torture-advocates?

  13. Anonsters: Snark plus anonymity – it’s not an attractive combination and does not add anything of substance to the discussion here.

  14. Those focused on practical issues may have more of a philosophical point than Professor Alford admits. To my mind, the greatest argument for particular rules of absolutist ethics is often that the cost and balances of utilitarian ethics are necessarily speculative. If we know that torturing this person here and now is a horrible wrong, but can never be sure that a greater good will follow (e.g., the saving of 1,000,000 people from torture), there is strong reason to abstain. Simply put, the strongest argument for absolutist ethics often derives from uncertainty of the cost-benefit equation. I applaud Waldron for tackling these issues from a deontological standpoint, but it is not unphilosophical to support absolute rules from within a utilitarian framework as well.

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