Torture What is torture? Is torture morally permissible? Should torture be legalised?

What is torture?

Definition of torture “Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 1.1.

Definition of torture “For the purpose of this Declaration, torture is defined as the deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons acting alone or on the orders of any authority, to force another person to yield information, to make a confession, or for any other reason” Declaration of Tokyo (1975). World Medical Association’s guidelines for physicians.

Definition of torture Torture is the intentional infliction of extreme physical or (in appropriate cases) mental suffering on someone who doesn’t consent to the suffering and who is defenceless. Four key features: 1.Intentional infliction 2.Extreme physical or (in appropriate cases) mental suffering 3.Victim does not consent 4.Victim is defenceless

More straightforward features 1. Intentional infliction: The action has to be intentional. If you accidentally hurt someone, you haven’t tortured them. 3. Victim does not consent: If the person you’re torturing consents to it, then it’s not torture. If someone has information that could stop the torture, and they don’t confess, this doesn’t mean they’re consenting. Points (1) and (3) appear in the UN Convention against torture, unlike (2) and (4).

Less straightforward features 2. Extreme physical or (in appropriate cases) mental suffering: What is meant by ‘suffering’? Suffering has a broader meaning than ‘pain’. What is meant by ‘extreme’? In paradigm cases of torture, there’s no doubt that the torture is an extreme case, but it’s not so clear-cut in real-life cases. What about mental suffering? Is the definition of suffering too narrow?

Definition too narrow? 2. Extreme physical or (in appropriate cases) mental suffering: The Inter-American Convention to Prevent and Punish Torture defines torture to include the "use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish". US Law (U.S. Code: Title 18: Section 2340) defines torture to include “the administration or application, or threatened administration or application, of mind- altering substances or other procedures calculated to disrupt profoundly the senses or the personality”.

Less straightforward features 4. The victim is defenceless: Specifically, the victim is physically defenceless. They have no control over what will happen physically. Anything that happens will do so at the discretion of the torturer. Even if the victim has information that could end the torture, she is still physically defenceless. If the victim has strong mental resources, she might be able to resist some of the psychological damage that torture would otherwise cause, but may still suffer great physical damage.

Is torture morally permissible?

Just-combat killing and just torture First step: Since (1) just-combat killing is total destruction of a person, (2) torture is – usually – only partial destruction or temporary incapacitation of a person, and (3) the total destruction of a person is a greater harm than the partial destruction of a person Then (4) just-combat killing is a greater harm than torture usually is;

Just-combat killing and just torture Second step: Since (4) just-combat killing is a greater harm than torture usually is, and (5) just-combat killing is sometimes morally permissible, Then (6) torture is sometimes morally permissible.

Just-combat killing and just torture First step: Since (1) just-combat killing is total destruction of a person, (2) torture is – usually – only partial destruction or temporary incapacitation of a person, and (3) the total destruction of a person is a greater harm than the partial destruction of a person Then(4) just-combat killing is a greater harm than torture usually is; Second step: Since(4) just-combat killing is a greater harm than torture usually is, and (5) just-combat killing is sometimes morally permissible, Then (6) torture is sometimes morally permissible.

Interrogational torture Interrogational torture is when a person is being tortured as part of an interrogation; that is, they’re being tortured so that they reveal information. The person being tortured is not completely defenceless – they have information, and if they reveal that information then the torturing will stop. So they have an element of control of their fate. As Shue puts it: “[the victim wouldn’t have] fully surrendered – but instead only retreated.” (130).

Terroristic torture The aim is to induce a state of fear upon some individual or group. According to Shue, the two main requirements of terroristic torture are: 1.The victim is a site at which great pain happens 2.That others must know about it and be frightened by it “The victim’s suffering – indeed, the victim – is being used entirely as a means to an end over which the victim has no control. Terroristic torture is a pure case – the purest possible case – of the violation of the Kantian principle that no person may be used only as a means. The victim is simply a site at which great pain occurs so that others may know about it and be frightened by the prospect.” (Shue)

Is interrogational torture different to terroristic torture? Shue makes an important distinction between the two. Richard Matthews argues that interrogational torture is a subset of terroristic torture (cf. ‘An empirical critique of interrogational torture’). Interrogational torture satisfies the two main requirements of terroristic torture.

A morally permissible case of torture Interrogational torture has a built-in end- point. A “pure case” of interrogational torture “appears able to satisfy the constraint of possible compliance” (134). However, very few cases meet these requirements. Almost all cases of torture are “political” insofar as they are also aimed at sending out a message to others (Shue).

Need for an end-point For torture to be morally permissible, there has to be an end-point. This raises two questions: 1.What constitutes the end-point? How does the torturer know that all the information has been given? 2.Is the torturer likely to stop? The torturer’s motivation is sadistic and brutal and there’s a likelihood that the torturer will exceed any rational calculations as to what constitutes a sufficient and necessary amount of pressure.

3 conditions of morally permissible torture (Shue) 1.The purpose actually being sought through the torture would need to be not only morally good but supremely important 2.It would have to be the least harmful means of accomplishing the supremely important goal. 3.It would have to be absolutely clear for what purpose the terroristic torture was being used, and therefore when the torture would end.

Ticking bomb case Key features: A bomb has been planted and will go off If it does, many lives will be lost One of the terrorists has been captured He knows where the bomb is There is not enough time to look for the bomb The only way to find the bomb in time is to torture the terrorist

Utilitarian view Jeremy Bentham: Torture can be used in exceptional cases. He provides some moral rules that have to be satisfied for torture to be permissible, including: Torture should not be applied without (near-) certainty that the would-be tortured has the relevant knowledge. Torture is only appropriate as a last resort in “cases which admit of no delay”. Minimal means should always be preferred to extreme ones The prospective benefits are greater than the prospective costs

Lesser evil claim Torture is the “least harmful means” (i.e. the lesser evil). Torturing one person is less evil than many people suffering. First concern: what are the implications for permitting one case of torture? Second concern: the lesser evil claim pays insufficient attention to certain features of the case.

Epistemic uncertainty Version A: We are certain, beyond any possibility of reasonable doubt, that there is a terrorist plot against us, and that an attack is impending. We have captured a person of whom we reasonably believe that there is a significant probability that he is a terrorist and has knowledge that might enable us to prevent the attack. But in fact this person is not a terrorist and has no relevant knowledge.

Epistemic uncertainty Version B: We have captured a person who we are certain is a terrorist. (Suppose that there are videos, taken independently by unrelated observers, of this person throwing a grenade into a school bus filled with children, and that we later subdued and captured him as he was entering a crowded restaurant with bombs strapped beneath his overcoat.) We reasonably believe that there is a high probability of an impending terrorist attack by members of his group and that he has knowledge of the plot. But in fact there is no plot, or while there is a plot, he has no knowledge of it.

Epistemic uncertainty Version A: We are certain, beyond any possibility of reasonable doubt, that there is a terrorist plot against us, and that an attack is impending. We have captured a person of whom we reasonably believe that there is a significant probability that he is a terrorist and has knowledge that might enable us to prevent the attack. But in fact this person is not a terrorist and has no relevant knowledge. Version B: We have captured a person who we are certain is a terrorist. (Suppose that there are videos, taken independently by unrelated observers, of this person throwing a grenade into a school bus filled with children, and that we later subdued and captured him as he was entering a crowded restaurant with bombs strapped beneath his overcoat.) We reasonably believe that there is a high probability of an impending terrorist attack by members of his group and that he has knowledge of the plot. But in fact there is no plot, or while there is a plot, he has no knowledge of it. (Jeff McMahan, 2008: 123)

Liability claim The terrorist’s wrongful actions and his refusal to confess make him responsible for generating a situation in which either millions of people will die or that he will be tortured. His actions have made him liable to be tortured. The terrorist’s right is not overridden: turns the victim’s agency against itself, forcing the victim to experience himself not only” (David Sussman). Emphasising this claim mean as helpless, but as complicit in his own violations we could justify the torture of the terrorist even if it’s not the lesser harm (e.g. he’s the aggressor, and is liable, so a disproportionate response is justified).

Extreme cases shouldn’t dictate policy “there is a saying in jurisprudence that hard cases make bad law, and there might well be one in philosophy that artificial cases make bad ethics.” (Shue 1978: 141) Torture should be made illegal throughout the world and those who want to practice it are therefore put into the position of having to justify the need for it.

Should torture be legalised?

In favour of legalisation (Dershowitz) Either we allow it to continue happening under-the-radar, in which case decisions are left to the low-visibility discretion of low-level law enforcement officials who do so without any accountability Or we choose to regulate it via judicial torture warrants and thus bring some measure of transparency and accountability

In favour of legalisation (Dershowitz) “Whatever option our nation eventually adopts – no torture even to prevent massive terrorism, no torture except with a warrant authorizing nonlethal torture, or no “officially” approved torture but its selective use beneath the radar screen – the choice is ours to make in a democracy.” (163) Alan Dershowitz, Why Terrorism Works

Objections to Dershowitz Some objections: Despite torture’s illegality, people still engage in it Many governments that torture are happy to sign up to agreements stopping them from torturing It sets a precedent. Cf. torture culture (e.g. Abu Ghraib). At odds with liberal society Dershowitz argues that a discussion about torture is necessary, and its legalisation would lead to greater transparency and accountability, which are important values in a liberal democracy. But others have argued against him for the same reason: that torture is at odds with the values of a liberal democracy.

They are not simply imaginary but unrealistic, like an imaginary alcoholic who drinks two beers only a night. There are former alcoholics, who do not drink at all, and active alcoholics. To think that there may be rare alcoholics who drink moderately is to fail to understand alcoholism. Similarly, history does not present us with a government that used torture selectively and judiciously. Are we to believe that America is likely to be the first alcoholic in history who can take only one drink? The first state apparatus that will use torture judiciously and selectively? Are American politicians so superior to mere mortals? (Henry Shue, 2006: 234)

Take-home questions 1.Is interrogational torture a subset of terroristic torture? 2.Should we ever take an absolutist position on torture? Is it unrealistic? 3.Is the Ticking Bomb scenario pure fiction? Or could it be a real-life situation? 4.Is Dershowitz right that institutionalised torture would reduce the practice? 5.Should judges decide when someone is tortured (rather than law enforcement officials)? 6.Is Shue right to liken the practice of torture to alcoholism?