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Torture & TerrorismTorture & Terrorism

IIIIII

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Uwe Steinhoff: “The Case for Dirty Harry and against Alan Dershowitz”

Steinhoff’s Project

• Shue’s interpretation of torture as conflicting with Jus in Bello is wrong-headed;

• Dershowitz’s suggestion of introducing ‘torture warrants’ is unlikely to bring about better consequences than our current approach;

• Rather, not legalizing torture seems the best route to minimizing the use of torture by police and government officials;

• This being said, torture does seem morally (and probably legally) justifiable in certain circumstances where the ‘victim’ of torture is morally culpable in the wrong being committed.

Steinhoff argues:

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Torture & Empathy• Some killings are justified, so why shouldn’t it be justified in

some cases to torture people?

- Certainly, objectively, being killed seems to be worse than being tortured.

• Emotional reactions to displays of torture (say, in movies) tend to be extreme.

• The idea that torture is more terrible than killing seems to be sustained by these.

• However, this fails to have much moral relevance: - Our emotional reactions to movies scenes involving large

amounts of feces or to cockroaches are similarly more extreme than to scenes of killing.

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Torture & Empathy (cont’d)• The reason we don’t react strongly to displays of killing is

that “we simply cannot empathise with the dead.” (340)• “[O]ur emotional reactions to displays of torture or killing

respectively are distorted by certain limits of empathy.” (340)

- What isn’t distorted is our emotional reaction to the prospect of our own deaths.

- “Whether killing is worse than torturing, then, should be measured against the preferences of people facing the alternatives of torture […] and death – most prefer torture.” (340)

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Henry Shue

• Shue argues that Jus in Bello is a principled distinction between combatants and non-combatants to try to make combat fair:

- Non-combatants are in principle defenseless; combatants are not.

- Just as this distinction serves as the basis for our approach to war, it should likewise serve as the basis for our perspective on torture.

Shue’s argument about combatants and non-combatants is wrong-headed:

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Henry Shue (cont’d)• However: Jus in Bello is a principle of proportionality, but

does not rest on this principled distinction between combatants and non-combatants (i.e. between those capable of defending themselves, and those not).

• “[T]he prohibition of assaults upon the defenceless is neither an explicit nor an implicit principle of the laws of war…” (338)

- As such, it serves as a poor grounding for our approach to torture.

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Henry Shue (cont’d)• Might we argue that while the enemy soldiers in the shelling

example are defenseless in the present case, they still pose a threat, and that’s why it’s permissible to kill them (whereas the terrorist does not, and that’s why it’s not permissible to torture him)?

- Certainly, it seems, the terrorist in Ticking Time Bomb cases might be considered to still “pose a threat” – he is withholding vital information.

- Even moreso, the terrorist in such cases is culpable in the threat of harm.

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Torture & Culpability• Doctor & Pacemaker Thought Experiment (341)

- “[I]f one of the two has to die anyway and one has to decide who it is going to be, then one clearly should […] decide against the person who has culpably brought about this situation.” (341)

- It makes no difference if there is only one victim, and not thousands or millions.

• Dirty Harry Example (342) - The kidnapper does have rights, but in this circumstance,

these do not include the right not to be tortured. - “The aggressor does not lose all his rights, but his right to life

weighs less than the innocent defender’s right to life.” (342)- If someone must be harmed in this case, it seems only right

that the one to be harmed is the one who brought it about that someone had to be harmed.

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Torture & Culpability (cont’d)

• Objection #1: Interrogative torture simply does not work. - Reply: This much is simply false—sometimes it does work

and the torturer gets the information he wants.- Even given that it is not completely reliable—is not always

going to bring about the wanted information—it gets it some of the time, which is always preferable to none of the time.

Objections:

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Torture & Culpability (cont’d)Objections:

• Objection #2: You don’t know if you have the right person. - Reply: There are a number of clear cases where, despite

lacking absolute certainty, it seems appropriate to inflict harm: Where an aggressor threatens a harm—even if we can’t

be certain he intends to carry through with the threat (both in cases of terrorists and muggers).

Where an individual is a member of the threatening group—even if that particular individual has made no attack or overt threat (be it a terrorist organization or a bloodthirsty mob).

“Being a member of certain groups that collectively undertake aggressive acts or intentionally pose a threat to innocent people makes one liable to severe countermeasures.” (344)

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Torture & Culpability (cont’d)Objections:

• Objection #3: What about the risk of torturing a completely innocent person—one who is not at all liable?

- Reply: This risk exists, just as it does in the case of punishment. But we need to weigh the risk of torturing the innocent against the risk of letting other innocents die in an explosion.

If the odds are high enough, such weighing should justify (not merely excuse) torture.

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Torture & Culpability (cont’d)• A moral absolutist position against torture “is a dangerous and

mistaken view.”• “Consequences count; they cannot simply be ignored for the

benefit of some allegedly absolute rule, especially if they might be catastrophic. Fiat justitia, pereat mundus [let justice be done, though the world be destroyed] is an irrational and immoral maxim.” (346)

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Legalized Torture?

• Alan Dershowitz suggests the introduction of legal ‘torture warrants’ rather than excusing particular cases after-the-fact.

So, if torture can be morally justified in certain circumstances, should it also be legalized?

- For Dershowitz, torture warrants represent a ‘principled break’ to circumvent a slippery slope at the bottom of which torture becomes widespread.

- Dershowitz argues that introducing torture warrants will recognize the intertwined values of our society’s security, our citizens’ civil liberties and human rights, and an open, accountable system of government, and yet allow for torture in Ticking Time Bomb cases.

- Dershowitz further argues that legally-mandated torture warrants will reduce the incidence of torture in general and unjustified torture in particular.

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Legalized Torture? (cont’d)

1) Can Dershowitz apply a similar approach to ‘brutality warrants’ or ‘prisoner rape warrants’? Introducing a system of justified brutality seems simply barbaric.

2) Dershowitz bases much of his evidence for the effectiveness of torture warrants on a study by John Langbein of torture warrants in England.

Problems:

• However, Langbein argues that torture was not part of the judicial system in England (though it was part of the Continental legal system, where its use was ethically questionable).

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Legalized Torture? (cont’d)

3) Dershowitz doesn’t give us good reason to think that torture would be less likely under requirement of judicial warrant than under a total ban.

Problems:

• Suppose a case where an act of torture seems justifiable to the official considering it (like a Ticking Time Bomb case).

- Whether under a system of torture warrants (here assuming the official could not obtain one) or an outright ban, the official seems just as likely to perform the torture. The excuse for doing so would be the same.

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Legalized Torture? (cont’d)

• Ticking Time Bomb and Dirty Harry cases are extremely rare—so it seems strange to introduce a system of law to allow for them.

• “If the stakes are high enough and no other option is available, police officers or other state agents will probably use torture even if they face prosecution if caught. […] Besides, if punished, they might still be allowed the benefit of mitigating circumstances.” (348)

• Granted that being tortured is not necessarily worse than being killed or incarcerated, introducing a wider practice of torture may still be worse than introducing or maintaining a wider practice of incarceration or killing.

Why should we legalize torture?

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Legalized Torture? (cont’d)• Dershowitz’s torture warrants are unlikely to create a

‘principled break’ on the slippery slope. - “Experience shows that measures introduced against

putative terrorists in alleged conditions of emergency tend to be doubly extended, namely, beyond the emergency and to crimes or offences of lesser seriousness. […] Once advertised as being targeted only against terrorists, [such measures] can now befall any citizen who gets involved in criminal procedure.” (350)

- Moreover, with torture justified in certain cases, it seems all the more likely that lesser forms of brutality will be seen as justified.

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Legalized Torture? (cont’d)• Without legal sanction, “Dirty Harry has to justify himself not

only morally but also legally. He might face legal charges, and that might make him think twice before he tortures someone. […] But if law enforcers can resort to torture knowing in advance that the state is behind them, the worst has to be expected—on a large and inevitably growing scale.” (351)