Part 1
On several accounts, US President Donald J. Trump announced his desire to reinforce the so-called Enhanced Interrogation Techniques (EITs)[1] on detainees suspected of terrorist offences. He requested to "fight fire with fire" when it comes to countering terrorism, because ‘he absolutely believes that torture works’[2], and said: “I’d bring back waterboarding and I’d bring back a hell of a lot worse than waterboarding”.[3] Similarly, Brazilian President, Jair Messias Bolsonaro portrays torture as a useful instrument (“Eu sou favorável à tortura”), and told the Brazilian people: “We shouldn’t just torture. We should torture and kill” (“Nós não devíamos só torturar. Devíamos torturar e matar”).[4] These notions on torture, from the most powerful, are not just astonishing; they are also incorrect. Divided in two interdependent essays, I will demonstrate not only that torture is in complete opposition to the moral liberal vision in which human beings possess an inherent dignity, but also that in-depth psychological and neuroscientific evidence successfully rejects the idea that torture works. In this first part of the essay, I will discuss the philosophical concepts that form the foundation for the contemporary debate on the use of torture.
Suppose you have a terrorist in custody who planted a bomb in your city, set to detonate in twenty-four hours. There will be disastrous consequences, killing thousands of innocent people, unless you find the location of the bomb. Should it be morally permissible for you to torture the terrorist in order to obtain the needed information?
This invariably applied imaginary scenario is known as the “ticking bomb dilemma” and forms the basis for the torture debate in normative ethics between consequentialism and the theory of deontology. In short, consequentialists hold the view that the morality of an action is completely determined by its consequences. The purpose is to choose the action with the overall happiest ‘or least unhappy’ net outcome. In contrast, deontologists expect an ethical person to act out of a profound moral duty (deon is the Greek word for duty). This responsibility recognises factors which make it morally unacceptable to perform a certain act, notwithstanding the overall consequences.
The ticking bomb dilemma seems to support the consequentialists side of the argument. There appears to be a solid moral justification to torture the terrorist, because it would contribute to the overall security of the city’s population utility. Torturing one terrorist for the sake of thousands of innocent people – at least, that is what Jeremy Bentham thought. Bentham, one of the founders of the doctrine of utilitarianism,[5] argued that torture under these extreme circumstances is ethically permissible, because it would result in a greater quantity of happiness: “[...] the public has so great an interest in his doing that the danger of what may ensue from his not doing it is a greater danger even that of an innocent person’s suffering the greatest degree of pain that can be suffered by Torture.”[6] In this particular context, Bentham also emphasised the aspect that victims have it within their power to stop the torturous act simply by complying with the torturer’s demands.[7]
To all of this, Immanuel Kant might make the following reply: ‘There are certain moral duties so fundamental that they rise above any calculated outcome in any given ticking bomb scenario.’[8] Kant’s absolutist deontological theory argues that it is morally wrong to treat a person as a mere means to the overall happiness of the collective. In other words, there are certain categorical and universally shared rights and duties that prevail utilitarian considerations.[9] After all, torture infringes upon the intrinsic dignity of human beings in a manner that a moral agent could not reasonably condone. But does this really disregard the utilitarian notion of counting the numbers? It can be argued that the utilitarian still has a strong case, because violating one’s dignity, that of a terrorist, could potentially save thousands.
It is important to keep in mind, however, that the described scenario is a hypothetical one. The dilemma's “disastrous consequences” argument is as strong as its absurdity: Several scholars defend either degree of permissibility of torture with the utmost creativity and imagination. Scenarios in which terrorists threaten entire cities and nations with ticking nuclear devices are common practice.[10] In contrast, Ron E. Hasner makes significant claims that such scenarios are not just unlikely, but rather unrealistic and, above all, have never actually occurred.[11] Although proponents of the CIA’s Detainee and Interrogation Program claim otherwise, there is no evidence that any of the 39 Guantanamo Bay and Abu Ghraib detainees subjected to the EITs came anywhere close to being an actor in a ticking bomb scenario.[12]
Nonetheless, numerous scholars and policymakers use these examples to justify the use of torture in a milder form (‘torture light’) or in exceptional cases. Professor Sir David Oman, for example, describes a situation in which a parent sits in front of their child’s kidnapper. Time is running out and the silent and ‘smug’ perpetrator is the only one to know about the child’s whereabouts. Oman claims that the parent might have the moral duty to torture the kidnapper. Because, as John Stuart Mill (Bentham’s protégé) would say, “not acting has also consequences”.[13] It would certainly be fairly easy to sympathise with the parent’s actions, but can they therefore be considered as moral? Kant would think not, and many with him. Article 1 of the German Constitution, for instance, states: “human dignity shall be inviolable”.
Another important deontologist argument against torture is that of the ‘slippery slope’. In addition to the desired results, the permissibility of torture inevitably brings other undesirable consequences. These can include the use of progressively more extreme techniques and the torture of the innocent. The Khaled el-Masri case provides a clear example hereof. On 31 December 2003, Khaled el-Masri, a German citizen was wrongfully abducted while on vacation in Macedonia, having been mistaken for a suspected member of Al Qaeda named Khalid al-Masri. He was interrogated for twenty-three days and then brought to a secret CIA prison in Afghanistan where he was interrogated further and subjected to EIT’s – el-Masri was drugged, shackled, stripped naked, beaten, and sodomized – for nearly five months.[14]
The scenario of the ticking bomb is misleading for another reason. The debate often neglects a third indispensable ethical theory, known as ‘virtue ethics’. This Aristotelian philosophy claims that justice gives people what they deserve.[15] Michael Sandel argues that the utilitarian ticking bomb scenario depends on a non-utilitarian notion that the terrorist is a cruel person and deserves to be punished.[16] Sandel makes an essential point here. After all, the given utilitarian scenario completely overlooks the possibility that saving thousands of lives could also justify torturing an innocent person.[17] What if not torturing the terrorist but beating and sodomizing the terrorist’s five-year-old daughter is the means to obtaining the required information. It is suspected that even the hardened ‘utilitarian’ would now consider the use of torture to be ethically unjustifiable.
Despite an international ban, torture is common practice and easily vindicated worldwide, within both democratic and non-democratic societies. Perhaps we need to take a closer look at Kant's emphasis on human dignity and consider Kantian norms as guidance to stop people from thinking they can use other people as a means. In the second part of this essay, I will demonstrate that the consequentialist justification of torture is based on the false assumption that torture is an effective method to gather information.
Sources
[1] In the second part of this essay I will demonstrate that EITs fall within the scope of torture.
[2] Dan Merica, "Trump on waterboarding: ‘We have to fight fire with fire’." CNN (2017). https://edition.cnn.com/2017/01/25/politics/donald-trump-waterboarding-torture
[3] Tom McCarthy, "Donald Trump: I'd bring back 'a hell of a lot worse than waterboarding'." The Guardian 7 (2016). https://www.theguardian.com/us-news/2016/feb/06/donald-trump-waterboarding-republican-debate-torture
[4] Augusto de Franco, “Por que podemos afirmar que Bolsonaro é um autocrata” Dagobah Inteligência Democrática http://dagobah.com.br/por-que-podemos-afirmar-que-bolsonaro-e-um-autocrata/
[5] Utilitarianism is a form of consequentialism and both terms will be used interchangeably throughout this essay.
[6] Jeremy Bentham (University College, London), cited in Warren L. Twinning and P.E. Twining, “Bentham on Torture,” Northern Ireland Legal Quarterly 24, no. 3. (1973): 313.
[7] Ibid.
[8] Michael J. Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge university press, 1982), 1-14.
[9] Ibid.
[10] See in this context: Michael J. Sandel, Justice: What’s the Right Thing to Do? (London: Penguin Books, 2009), 38 and Ginbar, Why Not Torture Terrorists? 26.
[11] Ron E. Hasner, “The Myth of the Ticking Bomb.” The Washington Quarterly 41, no. 1 (2018): 88-89.
[12] Ibid., 91.
[13] David Omand and Mark Phythian, Principled spying: The ethics of secret intelligence (Oxford: Oxford University Press, 2018), 66-67.
[14] U.S. Senate Select Committee on Intelligence, Committee Study of the CIA’s Detention and Interrogation Program, S. Rpt. 113–288, 128 and James P. Pfiffner, Torture, As Public Policy: Restoring U.S. Credibility on the World Stage (London: Paradigm Publishers, 2010), 107.
[15] Sandel, Justice, 9.
[16] Ibid., 39-40.
[17] Ibid.