11

Torture & TerrorismTorture & Terrorism

II

22

Some Background

What constitutes torture?

Why might someone conduct torture?

What ethical positions might one take on torture?

33

Henry Shue: “Torture”Shue’s Project

• Shue argues that there is no general basis upon which to justify torture, whether “terroristic” or “interrogational”.

• Although granting that “ticking time-bomb” cases are imaginable, Shue contends that exceptions must be justified on a case-by-case basis.

44

Pandora’s Box• There appear to be moral reasons for not discussing torture:

“If practically everybody is opposed to all torture, why bring it up, start people thinking about it, and risk weakening the inhibitions against what is clearly a terrible business?” (425)

• No other practice except slavery is so universally condemned as torture.

- But unlike the practice of slavery, torture is widespread and growing.

• However, Pandora’s Box is open, and what we’re seeing is that behind the public opposition to torture are less certain convictions.

55

Assault Upon the Defenseless• Jus in Bello (justice in waging war)

- (vs. Jus ad Bellum or justice in going to war)- Rests on the distinction between combatants and

noncombatants.- Insofar as possible, violence should not be directed at

noncombatants.- Does not seem directed as minimizing the number of

casualties as it does the types of casualties.- Concerned with keeping combat humane by protecting

those incapable of protecting themselves.- An instance of a more general principle prohibiting assaults

against the defenseless.- Under Jus in Bello, those killed will be those who were

directly trying to kill their killers.- The resulting picture of war is not one of victim and

perpetrator, but of winner and loser.

66

Assault Upon the Defenseless (cont’d)• In many ways, torture seems worse than killing.• “At least part of the peculiar disgust which torture evokes

may be derived from its apparent failure to satisfy even this weak constraint of being a ‘fair fight.’ The supreme reasons, of course, is that torture begins only after the fight is—for the victim—finished. Only losers are tortured.” (426)

- Torture seems to be about victim and perpetrator.- As such, the manner in which torture is conducted is

morally worse than killing under Jus in Bello.

77

Torture Within Constraints?

• The victim could comply and so end (or “escape from”) the torture.

• “The victim is not, on this view, utterly helpless.” (426)• The availability of such an act of compliance might make the

torture less objectionable.

Proposal: In many cases of torture there is something beyond the initial surrender which the torturer wants from the victim.

- The purpose of the torture must be known to the victim. • Such a form of torture might seem immune to the charge of

engaging in assault upon the defenseless.

88

Torture Within Constraints? (cont’d)

• Shue calls this kind of torture terroristic torture.• “The extent of suffering inflicted upon the victims of the torture

is proportioned, not according to the responses of the victim, but according to the expected impact of news of the torture upon other people over whom the torture victim normally has no control.” (427)

• As such terroristic torture cannot satisfy the constraint of possible compliance.

• The torturers have no reason not to make the suffering as great and as extended as possible—even to the point of murdering the victim.

However, at least one form of contemporary torture seems incapable of satisfying “the constraint of possible compliance” – where the goal of torture is the intimidation of people other than the victim.

99

Torture Within Constraints? (cont’d)

• Interrogational torture has a built-in end-point: when the information has been obtained, the torture need not continue.

• A pure case of interrogational torture appears to satisfy the condition, however few actual instances of torture are likely to fall entirely within the category of interrogational torture: “An instance of torture which is to any significant degree terroristic in purpose ought to be treated as terroristic.” (430)

We can distinguish terroristic torture from interrogational torture, whose purpose of gaining information seems consistent with the constraint.

1010

Torture Within Constraints? (cont’d)

1. Victims who are involved with the enemy but not so dedicated that cooperation with the torturer would constitute betrayal from the victim’s point of view.

2. Victims who are passive towards both sides, and would willingly provide the requested information, but do not possess the information.

Victims of torture fall into three broad categories:

- “[T]he victim has no convincing way of demonstrating that he or she cannot comply even when compliance is impossible.” (428)

1111

Torture Within Constraints? (cont’d)3. Victims who are genuinely committed to the enemy side,

and so for whom compliance would constitute betrayal. - “The possibility of betrayal cannot be counted as an

escape.” (429)- “[A] betrayal is no escape for a dedicated member of either

a government or its opposition, who cannot collaborate without denying his or her highest values.” (429)

- “For any genuine escape must be something better than settling for the lesser of two evils.” (429)

• In most cases, the apparent possibility of escape via compliance is only an illusion.

1212

Morally Permissible Torture

i. The purpose actually being sought through torture would need to be not only morally good but supremely important.

ii. Terroristic torture would have to be the least harmful means of accomplishing this supremely important goal.

iii. It would have to be absolutely clear for what purpose the terroristic torture was being used, and what would constitute achievement of this purpose.

• “Could terroristic torture be employed for a brief interlude and then outlawed?” (430)

• Necessary conditions for a morally permissible episode of terroristic torture would include:

Is there another route by which either terroristic or interrogational torture might by justified?

1313

Morally Permissible Torture (cont’d)

• Primarily because there are so few “pure” cases of interrogational torture, the same is generally true of it.

- There is little evidence of any regime having created a situation through terror in which terror was no longer needed.

- “[T]error is very unsuitable to the generation of loyalty.” (430)

- “[S]ince any sensible willing collaborator will cooperate in a hurry, only the committed and the innocent are likely to be severely tortured.” (430)

- The necessary conditions for a morally permissible episode of interrogational torture would be the same as those for terroristic torture.

- The chances of interrogational torture being employed briefly and then outlawed are equally small: “Torture is the ultimate shortcut. If it were ever permitted under any conditions, the temptation to use it increasingly would be very strong.” (431)

1414

Morally Permissible Torture (cont’d)

• “I can see now way to deny the permissibility of torture in a case just like this.” (431)

“Ticking Time-Bomb” Cases

- But ticking time-bomb cases areextraordinary cases, and onecannot easily draw conclusionsfor ordinary cases fromextraordinary ones.

- The proposed victim oftorture in tickingtime-bomb cases isnot someone wesuspect of plantingthe device: he isthe perpetrator.

1515

Morally Permissible Torture (cont’d)• “Any judgment that torture could be sanctioned in an

isolated case without seriously weakening existing inhibitions against the more general use of torture rests on empirical hypotheses about thepsychology and politics oftorture.” (431) - Even if torture might be

justified in ticking time-bomb cases, thereseems no reason toconsider relaxinglegal prohibitionsagainst it.

1616

Morally Permissible Torture (cont’d)• “An act of torture ought to remain illegal so that anyone who

sincerely believes such an act to be the least available evil is placed in the position of needing to justify his or her act morally in order to defend himself or herself legally.” (431) - Shue is, in essence, proposing a rule-based approach to

torture, which allows for particular exceptions that will need to be established on a case-by-case basis.

- “If it is reasonable to put someone through torture, it is reasonable to put someone else through a careful explanation of why.” (432)

- If the reasons are good enough to excuse the act, a judge can surely be expected to suspend the sentence.