Monday 9 December 2019

Is Torture Morally Defensible?

Posted by Keith Tidman

Far from being unconscionable, today one metric of how societies have universalised torture is that, according to Amnesty International, some 140 countries resort to it: whether for use by domestic police, intelligence agencies, military forces, or other institutions. Incongruously, many of these countries are signatories to the United Nations Convention Against Torture, the one that forbids torture, whether domestic or outsourced to countries where torture is legal (by so-called renditions).

Philosophers too are ambivalent, conjuring up difficult scenarios in which torture seems somehow the only reasonable response:
An anarchist knows the whereabouts of a powerful bomb set to kill scores of civilians.
A kidnapper has hidden a four-year-old in a makeshift underground box, holding out for a ransom.
Or perhaps an authoritarian government, feeling threatened, has identified the ringleader of swelling political street opposition, and wants to know his accomplices’ names. Soldiers have a high-ranking captive, who knows details of the enemy’s plans to launch a counteroffensive. A kingpin drug supplier, and his metastasized network of street traffickers, routinely distributes highly contaminated drugs, resulting in a rash of deaths...

Do any of these hypothetical and real-world events, where information needs to be extracted for urgent purposes, rise to the level of resorting to torture? Are there other examples to which society ought morally consent to torture? If so, for what purposes? Or is torture never morally justified?

One common opinion is that if the outcome of torture is information that saves innocent lives, the practice is morally justified. I would argue that there are at least three aspects to this claim:
  • the multiple lives that will be saved (traded off against the fewer), sometimes referred to as ‘instrumental harm’; 
  • the collective innocence, in contrast to any aspect of culpability, of those people saved from harm; and
  • the overall benefit to society, as best can credibly be predicted with information at hand.
The 18th-century philosopher Jeremy Bentham’s famous phrase that ‘It is the greatest good for the greatest number of people which is the measure of right and wrong’ seems to apply here. Historically, many people have found, rightly or not, that this principle of ‘greatest good for the greater number’ rises to the level of common sense, as well as proving simpler to apply in establishing one’s own life doctrine than from competitive standards — such as discounting outcomes for chosen behaviours.

Other thinkers, such as Joseph Priestley (18th century) and John Stuart Mill (19th century), expressed similar utilitarian arguments, though using the word ‘happiness’ rather than ‘benefit’. (Both terms might, however, strike one as equally cryptic.) Here, the standard of morality is not a rulebook rooted in solemnised creed, but a standard based in everyday principles of usefulness to the many. Torture, too, may be looked at in those lights, speaking to factors like human rights and dignity — or whether individuals, by virtue of the perceived threat, forfeit those rights.

Utilitarianism has been criticised, however, for its obtuse ‘the ends justify the means’ mentality — an approach complicated by the difficulty of predicting consequences. Similarly, some ‘bills of rights’ have attempted to provide pushback against the simple calculus of benefiting the greatest number. Instead, they advance legal positions aimed at protecting the welfare of the few (the minority) against the possible tyranny of the many (the majority). ‘Natural rights’ — the right to life and liberty — inform these protective constitutional provisions.

If torture is approved of in some situations — ‘extreme cases’ or ‘emergencies’, as society might tell itself — the bar in some cases might lower. As a possible fast track in remedying a threat — maybe an extra–judicial fast track — torture is tempting, especially when used ‘for defence’. However, the uneasiness is in torture turning into an obligation — if shrouded in an alleged moral imperative, perhaps to exploit a permissive legal system. This dynamic may prove alluring if society finds it expeditious to shoehorn more cases into the hard-to-parse ‘existential risk’.

What remains key is whether society can be trusted to make such grim moral choices — such as those requiring the resort to torture. This blurriness has propelled some toward an ‘absolutist’ stance, censuring torture in all circumstances. The French poet Charles Baudelaire felt that ‘Torture, as the art of discovering truth, is barbaric nonsense’. Paradoxically, however, absolutism in the total ban on torture might itself be regarded as immoral, if the result is death of a kidnapped child or of scores of civilians. That said, there’s no escaping the reality that torture inflicts pain (physical and/or mental), shreds human dignity, and curbs personal sovereignty. To some, many even, it thus must be viewed as reprehensible and irredeemable — decoupled from outcomes.

This is especially apparent if torture is administered to inflict pain, terrorise, humiliate, or dehumanise for purposes of deterrence or punishment. But even if torture is used to extract information — information perhaps vital, as per the scenarios listed at the beginning — there is a problem: the information acquired is suspect, tales invented just to stop pain. Long ago, Aristotle stressed this point, saying plainly: ‘Evidence from torture may be considered utterly untrustworthy’. Even absolutists, however, cannot skip being involved in defining what rises to the threshold of clearer-cut torture and what perhaps falls just below  grist for considerable contentious debate.

The question remains: can torture ever be justified? And, linked to this, which moral principles might society want to normalise? Is it true, as the French philosopher Jean-Paul Sartre noted, that ‘Torture is senseless violence, born in fear’? As societies grapple with these questions, they reduce the alternatives to two: blanket condemnation of torture (and acceptance of possible dire, even existential consequences of inaction); or instead acceptance of the utility of torture in certain situations, coupled with controversial claims about the correct definitions of the practice.

I would argue one might morally come down on the side of the defensible utility of the practice  albeit in agreed-upon circumstances (like some of those listed above), where human rights are robustly aired side by side with the exigent dangers, potential aftermaths of inertia, and hard choices societies face.


Keith said...

Let’s play out, in the form of what-ifs, the ‘anarchist and his bomb’ scenario a bit further. The aim is to test whether an ‘absolute ban’ on torture reaches its breaking point — a moral stress test, if you will. We’ll use two dimensions along our hypothetical graph: casualty count; and types of casualties.

A bomb in a trash bin, expected to kill 3 to 5 parishioners during services; a car bomb, expected to kill 20 to 60 passersby in a struggling low-socioeconomic community; a truck bomb, designed to bring down a hospital, expected to kill 2,000 patients, including a neonatal ward and gerontology ward; a bomb at a dam, anticipated to flood communities that can’t be evacuated in time, and expected to kill 50,000 men, women, and children; a nuclear device in a dense metropolitan area, expected to kill 200,000-plus civilians across all imaginable types.

The possibilities here are, of course, unlimited. (Including examples other than the ‘anarchist and his bomb’ thought experiment.)

Is there a threshold — in casualty count and/or types of victims — whereby the use of torture to extract the bomb’s whereabouts from the anarchist tips from being immoral to moral? When do the consequences of letting the bomb detonate (utilitarian position) matter more in the moral equation than the immorality of the act of torture?

What if, let’s say, one’s answer is ‘there is no threshold’ — that is, belief in an absolute ban, consequences be damned. Then might the deliberate, thought-through, free-willed choice to sacrifice those bombing victims, on the basis of a ‘moral principle’ regarding torture, itself paradoxically be immoral? Given the arguable paradox (and the unavoidability of a decision), where does that leave us in determining the more, or less, moral choice in playing out the scenario?

Tessa den Uyl said...

Only when people feel the need to defend something and justify their interests I suppose they can go as far as torture, which to me makes Sartre’s observation perfectly sensible.
Morality comes about in the idea of having interests, if not, we wouldn’t be in need to live with the fear of losing something ( usually an idea) and morality wouldn’t find ground to erect itself.

Martin Cohen said...

To me there's a difference between an individual using, let us say, 'torture-lite' - like the Police lieutenant who *unofficially* threatens to shoot the Keith's mad bomber, or maybe slaps his face a few times... and the state officially taking this power. As we saw the US did so grotesquely under President Bush*. Perhaps it's a bit illogical of me, but I do feel that the state must uphold the PRINCIPLE whereas individuals can construct utilitarian justifications. But I also think that any individual who did torture someone else should be considered guilty of a serious crime - and their motivation would not be enough to absolve them. Is that what Tessa is saying too?


Keith said...

‘Only when people feel the need to defend something and justify their interests I suppose they can go as far as torture’. Perhaps, Tessa, the ‘something to be defended’ and the ‘interests to be justified’, as defined by societal standards, may themselves intimately tie back to principles of morality.

Our returning for a moment to two of the hypothetical examples from the post above leads us to society’s (reasonable) desire to save the lives of the prospective bombing victims and of the kidnapped child. One might regard these two examples, to borrow you term, as ‘interests’ (expressions) of society’s ethical norms, though to my mind they are no less principled for being so.

So what if, instead, society was to decide not to extract vital information from the bomber or kidnapper? (Our crucially acknowledging, here, that that still amounts to a decision, which in these two cases have dire consequence!!) Would, alternatively, letting the bomb go off and kill 2,000 hospital patients, or letting the buried four-year-old toddler die of eventual suffocation, really be the more moral choices for society to make? Or not?

Tessa den Uyl said...

My dilemma with this kind of discussions is that we should have a pre-fixed idea about an idea of the best solution. When we look at our history mankind has proven to be extremely cruel, probably this belongs to our species, nonetheless we would have the ability to evolve in a different way of thinking and acting out, unfortunately not much explored.

In other words, if we continue to think the way we are supposed to think, torture, exploitation, misery etc. are obviously due to a pattern a majority doesn’t want to interrupt. The refusal is to set aside that one way of thinking is somehow better, more correct, than another, and can even permit any kind of violence to defend itself. Isn’t that a crazy imagination?

Thomas O. Scarborough said...

Thank you, Keith. A few observations.

I should think that torture is always in some way self-defeating. It is short-sighted to use it.

It depends, though, what torture is. This matters a lot as to what one says about it. I suspect that 'torture' is ubiquitous in society, only we do not call it that. Would there then be a distinction between institutionalised torture and other torture?

I wonder whether you are equating society and state. Here in South Africa, the two in practice have different judicial systems. Under the social (not state) system, torture and execution are routine (many hundreds of executions per year).

Keith said...

‘I also think that any individual who did torture someone else should be considered guilty of a serious crime — and their motivation would not be enough to absolve them’. Your instinct here, Martin, is of course well taken, and based in ethical norms; I admit it's a position probably shared by many. That said, I’d like to comment briefly on whether there might, or might not, be mitigating circumstances sufficient to absolve the ‘perpetrator’, even in the case of torture.

So, I’m thinking of a parallel, even if imperfectly analogous, situation related to civilian systems of justice. That is, if a wife has been severely physically and mentally abused by her husband for years, and she ultimately ‘murders’ him as an ostensive last recourse, it’s not uncommon (though not assured) for the mitigating circumstances of abuse to result in the jury fully absolving her, or at least with the court assigning a reduced punishment. That is, 'motivation' indeed taken into account, even though the act of murder — in and of itself, apart from consideration of mitigation — is typically construed as immoral.

I wonder if saving the lives of babies in a hospital neonatal ward, threatened by a bomb, might serve as a similarly mitigating circumstance, or motivation, in the harsh extraction of information to prevent the incident’s occurrence. (This is not an unreasonable hypothetical, by the way, as there was a truck bombing of a public building in the United States a couple of decades ago, which was reported to include a child-care center with toddlers and infants.)

Keith said...

Yes, Thomas, I was discussing ‘torture’ as an institutionalised practice, hence my reference in the essay to the ‘domestic police, intelligence agencies, and military forces, among other institutions’. That is, what I conceive of as official ‘state’ actors. However, if I understand you correctly, you raise an apparent, and interesting, distinction between ‘state’ and ‘societal’ actors, which you say matters in context of two, ostensibly separable South African judicial systems. I have to plead unfamiliarity, however, with what that distinction between the two judicial systems looks like.

Although my essay gave examples of what I’d call institutional actors, as listed at the beginning of this paragraph, I’m not sure what non-institutional torturers or executioners might be — other than, perhaps, local individuals or groups who take matters into their own hands in what one may call an ‘extra-judicial’ manner. Though I assume you’re not talking about vigilantism per se, but rather a layer of officially sanctioned acting out apart from governmental institutions. Given my admitted unfamiliarity with how you’re parsing the concepts of ‘two judicial systems’ and ‘institutional (state)-versus-societal actors’ in the context of South Africa, I’d have to defer to you to explain these notions further, should you wish.

Thomas O. Scarborough said...

Not to answer the philosophical aspects, Keith, but just to expand on my so-called two judicial systems. South Africa has some of the highest aspirations in the world as far as human rights are concerned. These are incorporated in the Bill of Rights, and are taken quite seriously. At the same time, there is a parallel system of justice. I think one can call it a system, because it bears the same characteristics throughout the country. By this system, perhaps one-thousand people are put to death annually, and many are tortured. Therefore when one speaks of torture, one might think intuitively of the state. However, torture might happen alongside whatever it is the state is doing. In South Africa, it is sometimes condoned by the instruments of state.

Keith said...

Thank you, Thomas, for explaining the two parallel judicial systems. Although I have no firsthand experience of such bifurcation of judicial systems, I do get your point about the existence of a Bill of Rights that articulates aspirational human rights. And I get the point about the parallel (non-state) system of justice resulting in, as you say, as many as a thousand people put to death annually. However, I admittedly have trouble reconciling the two facts.

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