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February 25, 2009


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The argument is interesting but, I think, incomplete. Suppose it is indeed true that, in the vast majority of cases, torture is either ineffective or unnecessary to prevent a sufficiently greater evil from occurring. Still, that leaves us with a very small set of cases where torture would be in fact both effective and necessary. Why aren’t these cases, however infrequent, sufficient reason to have laws permitting torture (only in such cases)? (Must crimes be expected to occur sufficiently often in order for us to be justified in having laws against them?)

I think what is doing the supplementary job here is the tacit assumption that permitting torture under certain conditions will likely cause officials to torture under different but sufficiently similar conditions. Assuming that cases in which all the conditions you list are sufficiently similar to cases in which most but not all are, the argument would then be that, if we permit torture only in the few cases when torturing would be justified, there will be several unjustified acts of torture per every justified one. (Perhaps it is an argument of this sort that you are assuming when you write that “The would-be torturers are likely to already have the information they need, making torture simply a gratuitous act of cruelty.”)

". . . 'that a bomb has been planted, though they don't know where, that it is going to explode very shortly (so there is no time for any remedy but torture), that the prisoner has the information about the bomb's whereabouts, that the prisoner is likely to yield the information under torture, and that the torture can be delivered in such a way that, in the time available, the prisoner will not die or become incapable of communicating under torture.' But this leads me to ask: what sort of intelligence would make it possible to know (or have very strong evidence in favor of) these conclusions but would not also yield knowledge of the whereabouts, etc. of the bomb?

I'm not sure I see why this case is so implausible. Assume that we have a particular form of torture that we know to be extremely effective; very high percentages of all who undergo it confess, and confess truth. Additionally, this form of torture poses a low physical threat to the prisoner, thus preventing the prisoner from being incapacitated. Now assume that we have a prisoner who was caught (or began after s/he was caught) bragging about having been involved in a plot to plant a bomb somewhere. The prisoner brags, further, that
s/he is willing to share the exact time of the explosion, because "we'll never find it in time." If we set aside concerns that the prisoner is posturing or insane*, which we would hopefully be able to do with a reasonable amount of certainty, doesn't this case meet all the criteria? I'm not saying it is going to happen often, but I don't see anything particularly far-fetched about it.

*Actually, I'm tempted by the idea that we need only worry about insanity. If someone claims that s/he is endangering lives and challenging us to do something about it, if we can rule out insanity do we really need to be sure s/he isn't also lying out of bravado before acting?

Gordon Graham makes a similar argument to the one Michael is making in the second edition of Ethics and International Relations (Blackwell, 2008).

He argues that there are unjustified assumptions in the argument for torture. The pro-torture argument he bases his cases on is Seumas Miller's argument (in Miller's entry in the Stanford Encyclopedia on torture, but also present in Miller's recent book on terrorism). To be fair to Miller, his argument, as I recall, as that torture can be used in exceptional cases but should not be institutionalized, so as to avoid Pablo's worry.

The gist of Graham's counterargument (pp 148-149) is that Miller's argument makes two explicit assumptions:

1. That the suspect has information about the ticking bomb
2. That the information is vital

And an implicit assumption:

3. That the vital information can be extracted, using torture, in time to be useful

Graham claims (without any specific citations to back this up) that "empirical evidence suggests that none of these assumptions is satisfied in real cases" which seems in line with the epistemic problem you raise.

Graham's own motivation for this decision is his defense of a form of political Legalism (instead of Moralism or Realism) that asks nations to maintain agreed-upon standards, which would include the prohibition on torture.

What do you mean by torture? Does "torture lite" count? (Threats, sleep deprivation, etc.)

Are you familiar with Mark Bowden's "Dark Art of Interrogation"? He gave a real life example of how a murderer was threatened to give the location of a kidnapped child. Is this kind of example too rare, or does it not justify torture for some reason?

James's worry is right. It's not that such cases are extremely rare (although they are), but that even in these cases, where the epistemic conditions absent from "traditional', or "trolley-problem style" cases such as that of the so-called ticking bomb, torture remains unjustified. On broadly consequentialist grounds (which is a fair place to begin, since those who would consider torture justified in a case such as that of Giefgen think so on account of the consequences of not employing torture) the institutionalisation of torture that this would require would - as I argue in my book - outweigh even the death of this particular child. On the other hand, and perhaps because even talking about the case in these terms might be thought a reductio of consequentialism, a consideration of what torture is is already enough to rule it out. What I think is important is that torture remains unjustifiable on either a consequentialist or a deontological approach.

I wonder, too, if the way that ticking bomb cases are framed doesn't make already make them morally 'loaded'. John Parrish makes an argument that the presentation of moral dilemmas in the show 24 presents these kinds of cases (not just torture, but that would clearly be one of the common ones) into parodies of actual moral dilemmas.

I enjoy 24, but I think John is right.

The article can be found here:

I look forward to reading your book on this topic, Bob.

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