In my previous post, John Hobbins helpfully pointed to an old post where the subject was discussed. David Luban of the Georgetown University Law Center, in the article I linked to previously, discussed what he terms the “classic paper on torture” by Henry Shue from 1978. Shue essentially held Hobbin’s view that there is a circumstance where torture is acceptable, an exception in that worse of circumstances, i.e. the ticking bomb scenario where torturing the enemy will gain information and save many, many more lives. He has since changed his mind. In what follows, I’m going to discuss and summarize Luban’s essay because, well, let’s face it, very few of you are actually going to sit down and read all of its excellent 36 pages.

There is a problem with arguing on the basis of scenarios where torture is okay as long as it saves lives — one that Shue himself states in his original paper: “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, “Torture,” 141; my emphasis). But what exactly does Shue’s adage mean?

Luban writes that it could either of the following:

(1) By focusing on improbable artificial cases, theorists misdirect readers’ attention from genuine issues in the real world to specious issues.  They illicitly change the subject from important and authentic questions about the limits of legitimate interrogation in non-TBS cases to intuition-mongering about a tendentious hypothetical.

Or it might mean (emphasizing the “hard cases make bad law” trope):

(2) Policies have to do with rules, procedures, protocols, and laws.  Lawmakers
should build policies and rules around typical cases and ignore the rare hard
cases; and moralists should ignore the weird ones.  Thus, even if there were rare
cases of morally justifiable torture, procedures and laws should not accommodate
them by making exceptions for them (Luban, 23).

Luban has already approached the issue from the perspective of #1 (HERE – which is also worth reading and its shorter). But in his paper quoted above, he argued in both directions. Perspective #1, according to Luban, says nothing about the validity of torture in the sort of scenario that Hobbins would allow. And regarding Shue, he writes,

In the 1978 paper, Shue argues that very little follows from [perspective #1], because all he has conceded is “the permissibility of torture in a case just like this” – that is, a case in which all the conditions in the TBS [ticking bomb scenario] are satisfied.

I am not so sure.  The problem is that once one has conceded the permissibility of torture in a TBS case, one has apparently admitted that the prohibition on torture is not moral bedrock.

. . .

What if one knows only that the captive is a high-ranking terrorist who might know something useful, but maybe nothing that prevents any particular ticking bomb – but, on the other hand, the mistreatment is “only” sleep deprivation?  This, after all, is very likely the reality of U.S. torture. After making the initial concession, any prohibition on torture faces significant dialectical pressure toward balancing tests and the unwelcome consequentialist conclusion that interrogational torture can be justified whenever the expected benefits outweigh the expected costs (25).

And according to Luban, this is exactly the sort of situation (and its where the US seems to be right now) where perspective #2 becomes very important and he illustrates it using the Israeli Supreme Court:

Some who agree that the ban on torture must stand may still object to the idea of punishing someone who has, in the rare case of a TBS, done the right thing by violating the ban.  That is why most proponents of (2) advocate leaving the anti-torture rule in place but permitting accused torturers to plead necessity in the rare authentic TBS, or, alternatively, to receive a sentencing discount or even a pardon if they are convicted of the crime of torture.  The first of these was the strategy adopted by the Israeli Supreme Court in its momentous 1999 decision banning torture.  The Court allowed that under Israeli law an accused torturer could plead necessity; but when the Israeli security services argued that in that case the court should create an ex ante permission to torture in ticking bomb cases, the Court refused.  An ex ante permission is a “general administrative power” – a rule, not an exception – whereas the necessity defense concerns “an individual reacting to a given set of facts; it is an ad hoc endeavour, inreaction to a event. It is the result of an improvisation given the unpredictable character of the events” and is not to be turned into a rule.43 [Note 43: Israel Supreme Court, Judgment Concerning the Legality of the General Security Service’s Interrogation Methods, 38 I.L.M. 1471 (1999), para. 36.  Oren Gross has offered a similar argument.] The Court perceived the trap it would fall into if it turned the possibility of an ex post defense into an ex ante permission: the ex ante permission would be a rule, not an exception.  With or without the necessity defense, interpretation (2) allows us to acknowledge the justifiability of torture in the TBS while maintaining rigid prohibitions against torture and CID (26-27).

I think that this perspective is one that John Hobbins would agree with this based on what I’ve read in his single post from last May (though I may be wrong…I don’t know)

But at the same time, both Luban and Shue argue that it is possible to go beyond both perspectives #1 & #2:

In his 2005 paper, Shue goes beyond (1) and (2) and renounces his earlier concession that torture would be justifiable even in a genuine TBS case. His reason is that he now believes that the true TBS is not merely improbable, it is actually impossible. That is because, among the key conditions defining the TBS, are the requirement that it is an exceptional emergency measure and not an institutionalized practice, and the related point that the torturer is a conscientious, reluctant interrogator who uses torture only in the rare cases where all the TBS conditions are met. But a torturer must be competent; he must have training and the opportunity to practice; his training requires teachers, and his equipment must have been acquired in advance. There will be a doctor present, to insure that the subject of interrogation does not die. The torturer is not Jack Bauer but an apparatchik in a torture bureaucracy. A TBS without a torture bureaucracy is impossible.

To try to leave a constrained loophole for the competent “conscientious offender” is in fact to leave an expanding loophole for a bureaucracy of routinized torture, as I misguidedly did in the 1978 article.44 [Note 44: Shue, “Torture in Dreamland,” p. 238.  I offer similar arguments in “Liberalism, Torture, and the Ticking Bomb,” pp. 47-51.]

The “moderate” position on torture represented by (2) is, in Shue’s words, torture in dreamland. “So I now take the most moderate position on torture, the position nearest to
the middle of the road, feasible in the real world: never again.  Never, ever, exactly as
international law indisputably requires”(page 28, my emphasis).

There is much, much more, but this is getting extremely long and my point was to condense the length, not extend it. Much of it deals with deontological ethics in relation to consequentialism. And in my view, I find it very, very difficult to justify a Christian holding to anything other than deontological ethics.

Bibliography:

David Luban, “Liberalism, Torture, and the Ticking Bomb,” in Karen J. Greenberg, ed., The Torture Debate in America (Cambridge UP, 2006), pp. 55-68.

Luban, “Torture, American-Style,” Washington Post, Nov. 27, 2005, p. B1, available at http://www.washingtonpost.com/wp-dyn/content/article/2005/11/25/AR2005112501552.html.

Luban, “Unthinking the Ticking Bomb” (July 1, 2008). Georgetown Law. Georgetown Law Faculty Working Papers. Paper 68. http://lsr.nellco.org/georgetown/fwps/papers/683939

Henry Shue, “Torture,” Philosophy & Public Affairs 7 (1978): 124-43.

Shue, “Torture in Dreamland: Disposing of the Ticking Bomb,” Case Western Reserve
Journal of International Law 37 (2006): 231-39.