Torture and Morality: Does Society Matter?

Torture and Morality: Does Society Matter?

I. Introduction

At the International Spy Museum in downtown Washington, D.C., visitors can climb inside a replica of the CIA’s smallest confinement box.[1] Are there moral stakes involved when an individual plays with imitations of the tools of torture? If so, how does the existing moral discourse on torture incorporate a role for members of society? This essay considers the moral costs of accepting torture as a justifiable practice. My primary lens of analysis is neither the torture victim nor the torturer. Instead, I am interested in understanding the role of members of society in the broader moral framework surrounding the issue of torture in the second decade after the 9/11 terrorist attacks. Since 2004, the first year that Pew Research Center starting polling on the subject, the percentage of Americans who said torture could sometimes or often be justified increased from forty-three percent (43%) to fifty-three percent (53%) in 2014.[2] Still, torture remains a controversial subject in the public discourse. For example, a group of 176 retired high-ranking officers from all branches of the United States military expressed concern about then president-elect Donald Trump’s campaign statements supporting the use of torture and so-called “enhanced interrogation techniques.”[3] But the White House has paid little attention to those who call for less torture in U.S. national security policy. Less than five years after the release of the declassified executive summary of the Senate Torture Report, President Trump, in his first State of the Union address in January 2018, called for captured “unlawful enemy combatants” to be “treated like the terrorists they are.”[4]

The first half of this essay establishes a theoretical foundation for discussing the moral dimensions of torture. First, Section A provides a general definition of torture. Second, Section B presents the classic consequentialist and deontological approaches to the issue. Ultimately, I argue that these arguments do not provide a satisfactory moral account of torture; especially the justification of torture for national security purposes. In the second half of the essay, I advocate for the inclusion of legal and political philosophy in the ethical discussion of torture. Finally, I argue for a moral understanding of the social archetype of torture, concluding that a more robust moral approach to torture is needed to fully comprehend and, ultimately, combat the prevalence of torture in American society.

A. Defining the Acts and Purposes of Torture in Legal and Moral Terms

This section provides a sketch of torture to provide a conceptual grounding for the remainder of the essay. Torture has long been associated with the extraction of information for the pursuit of public safety and well-being. For the Romans, torture was an act where physical suffering was used “to unearth crimes” and “elicit the truth.”[5] Cesare Beccaria, writing in the 1760s, also defined torture in instrumental terms. “The torture of a criminal . . . is used with an intent either to make him confess his crime . . . or discover his accomplices.”[6]

Henry Shue distinguishes this type of instrumental torture (“interrogational torture”) from torture intended to generally intimidate others or suppress dissent (“terroristic torture”).[7] This essay focuses on interrogational torture,[8] which, given its alleged purpose of extracting useful information from those who have committed crimes or intend to commit harm, raises more complicated moral questions than terroristic torture. Interrogational torture is the one form of torture where “reasonable minds” differ as to its moral permissibility.

Although its specific traits are widely debated, most commentators agree that interrogational torture has certain general characteristics. The United Nations’ Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CaT) “torture” definition provides detail for my purpose here:

[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession . . . when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.[9]

Pursuant to the CaT definition, David Sussman notes that torture comprises deliberate infliction of pain or some other distressing mental state on an unwilling participant for reasons the victim does not share.[10]

Torture’s intentionality distinguishes it from other types of conduct that cause pain. For example, I may carelessly swing my golf club at a ball without looking and hit someone in front of me with the ball. The impact could cause serious, permanent injury. My action was negligent, and therefore, morally reproachable. But no one would realistically consider my negligent action commensurate with torture, even if the golf ball injury was more severe than the harm inflicted during an interrogation. Torture’s procedural mechanism—the intentional infliction of physical or emotional distress—is necessary, but not sufficient, for understanding its unique moral harm as opposed to other acts, such as intentional killing.

The victim’s defenselessness is another important aspect to take into account when considering torture’s special moral character.[11] Unlike the soldier in war, who can fight back, retreat, or, in some cases at least, surrender, the torture victim, by definition, cannot take action to avoid the torturer’s infliction of pain and suffering. In the context of interrogational torture, the torture victim does have a way out of her situation: divulge the information the torturer seeks. But the assertion that the victim of an interrogational torture controls her own destiny is built on faulty logic.[12] First, the conception takes a leap of faith that the victim actually holds the information the torturer seeks.[13] Second, assuming the victim does have the information and provides it in the form and within the time required, the torturer is unlikely to simply relinquish her power and let the victim off the hook. Pleased with the information already gathered, the torturer may seek additional pieces of evidence distinct from the information originally sought through the interrogation. Further, the torture may shift to a purely terroristic or retributive form, as the torturer expresses her contempt or personalized justice on the victim, who has just confessed.

In sum, interrogational torture is the deliberate infliction of pain or mental suffering on an individual who cannot defend himself for the purpose of eliciting information. The intention to cause harm, as well as the vast power imbalance between the torturer and victim, are unique characteristics that inform our moral intuitions against torture. My purpose here has not been to offer an exhaustive definition of torture or compare it to other types of morally dubious conduct, such as murder, coercion, or emotional abuse. Rather, I provide a general understanding of torture to help guide the discussion below.

B. Ethical Approaches to the Ticking Time Bomb Scenario

The fault lines in the moral debate around ticking time bomb scenarios are established. Nonetheless, it is important to cover well-trodden ground to provide context for my argument. Consider the following scenario.[14] After months of intensive intelligence gathering, the FBI uncovers a terrorist plot to blow up the New York City subway system that will cause thousands of civilian deaths. The authorities know that a timed bomb is already planted and is scheduled to go off on a certain date, but they do not know the exact location of the bomb. Further, the FBI knows that one and only one individual mastermind in the terrorist cell knows where the bomb is and has access to the mechanism that can stop the countdown. On the day before the bomb is scheduled to explode, the FBI captures the mastermind and brings him back to headquarters for interrogation. Is it morally permissible to torture the mastermind in order to thwart the attack?

A traditional consequentialist approach might claim interrogational torture is sometimes morally justifiable to stop the terrorist plot. Under this logic, thousands of innocent civilian lives justify the pain inflicted on the terrorist. When pressed, most consequentialists will add conditions to this simplistic balancing approach. For example, Fritz Allhoff argues that where “the use of torture aims at acquisition of information, the captive is reasonably thought to have the relevant information, the information corresponds to a significant and imminent threat, and the information could likely lead to the prevention of the threat, interrogational torture is morally permissible.”[15] Thus, the decision to torture is a sliding scale rather than a pure balancing approach. To put it simply, the more likely the torture is to stop the harm, the more likely it is morally justifiable. But how do we draw this line? Does law help solve the problem?

Other consequentialist approaches move from hypothetical ticking time bombs to real world courtrooms. Infamously, Alan Dershowitz argues that the institution of torture is warranted to help prevent terrorist attacks.[16] For Dershowitz, torture is a reality of America’s war on terror.[17] Thus, there should be some legal means to solidify the necessary evil of torture. Oren Gross shares Dershowitz’s view that sometimes “catastrophic cases,” where torture cannot be reasonably rejected, arise.[18] Unlike Dershowitz, however, Gross does not seek an ex ante legal mandate to conduct torture in such cases.[19] Rather, Gross argues for ex post ratification of tortuous conduct.[20]

Consequentialism can also be used as a sword against Allhoff, Dershowitz, and others who justify at least some uses of interrogational torture. At least in some cases, torture is an unreliable and inefficient method in comparison to the suffering and harm it causes to the victim and the torturer.[21] Torture victims are prone to telling their captors what they want to hear.[22] Defective information could lead authorities down a rabbit hole, leaving them in no better place than if they had avoided torture altogether. Still, it seems likely that consequentialist approaches will justify interrogational torture in scenarios like the one described above, where massive loss of life is virtually guaranteed and the probability that the torture victim will give up enough information to prevent such disaster is high.[23] Where the number of potential lives to be saved is high enough, a reasonable chance that the interrogation leads to useful information seems to necessitate or at least excuse torture.[24]

An absolutist Kantian position responds that interrogational torture treats the victim as a means to an end, and, therefore, is never justifiable under any circumstances.[25] The pain of torture compromises individual autonomy, debilitating the victim’s ability to reflect, reason, or perceive herself as a rational being. Thus, torture is “not only a violation of the value of rational agency, but a violation that is accomplished through the very annihilation of . . . agency itself.”[26] Torture then is a peculiar type of wrong not because of the pain it produces, but because it compels the victim to collude “against himself through his own affects and emotions, so that he experiences himself as simultaneously powerless and yet actively complicit in his own violations.”[27]

An absolute prohibition on torture has considerable moral appeal but counters our intuitions in the ticking time bomb scenario. How could one defend the argument that torturing a known terrorist is a greater moral harm than the loss of hundreds of innocent lives?  Specifically, it must be justified against the maxim that killing, too, is an absolute wrong. It seems incorrect then to conclude that torture (which does not typically result in the death of the victim) is a worse moral crime than a terrorist attack that costs thousands of lives and, at least hypothetically, could have been prevented through non-lethal, interrogational torture.

Some deontological arguments do not categorically reject interrogational torture. Instead, Kantian philosophers criticize the assumptions underlying the ticking time bomb scenario for various reasons. Shue points out that the hypothetical, with its additive conditions, e.g., the interrogational torture will save lives and not be abused in future cases, is an idealization—a philosophical “dreamland.”[28] Moreover, Shue argues that the classic ticking time bomb scenario is an abstraction of the practice of torture, which is not a single event, but an institution with practitioners who require practice, i.e., more torture.[29] Michael Davis also attempts to remove the bite of the absolute Kantian approach.[30] Davis suggests that the evil of torture is not so great as to prevail over other moral considerations, for instance the maxim of not killing in the scenario above.[31] However, for Davis, there are no situations in the real world where countervailing moral considerations are greater than the moral command against torture.[32]

As the foregoing discussion suggests, the ticking time bomb problem raises more questions for moral philosophy than it illuminates answers. Neither the consequentialist nor Kantian takes are able to provide consistent results that match our intuitions on torture or to explain the pervasiveness of torture as an historical practice. The consequentialist runs into slippery slope problems as the numbers of potential victims or, more acutely, the efficacy of the torture decreases. Meanwhile, the Kantian approach offers an attractive maxim against torture, but cannot defend absolutism in the face of the loss of innocent lives. A more practical take may give an adequate response to situations where the question is whether to torture or not in a defined universe, but such pragmatism does not give an answer to situations that involve conflicting moral claims on rights (e.g., the right against torture versus the right to life), which do occur in the real world.[33]

The moral questions at play in the ticking time bomb scenario become more complicated when the situation changes from a onetime event to a repeated event. Consider the example I shared earlier and imagine that the FBI was successful in using interrogational torture on the mastermind and New York City was saved.[34] This positive result is likely to make the FBI more willing to use interrogational torture in a future scenario. Eventually, torture becomes a routine, institutionalized practice, where torturers no longer consider the individual moral stakes of the ticking time bomb scenario.[35] In other words, the harm of any single event of torture is no longer a relevant concern within the institution’s self-perceived morality. It is important to note that this process of institutionalization does not mysteriously appear. Rather, it is the culmination of repeated instances of the decision to use torture and perception of (often false) positive results.[36]

In Part I, I sketched a general outline of some of the primary philosophical debates around torture, focusing on standard consequentialist and Kantian responses to the ticking time bomb scenario. I suggested that both of these ethical approaches are lacking something. A consequentialist account of torture might make sense in imagined hypotheticals. However, consequentialism faces many thorny realities, such as the efficacy of torture in time-pressed emergency scenarios. On the other hand, deontological ethics does not adequately account for what Rebecca Gordon calls the “continuing, institutional, socially embedded nature of torture.”[37]

II. The Social Archetypes of Torture

In this half of the essay, I briefly describe the work of Jeremy Waldron[38] and David Luban,[39] before turning to my primary arguments. Before advancing this argument in detail, I introduce positions from legal and political philosophy to the moral discourse on torture for several reasons. First, institutions are where our moral dilemmas play out. As discussed above, the question of whether or not to torture must be understood in the social context in which it arises. Second, interrogational torture is a practice, not a one-off occurrence. The practice is justified in aggregate on the grounds of national security and conducted by state practitioners of torture. Thus, any complete moral account of the ticking time bomb must recognize interrogational torture’s repetitive and institutional nature. Only then can we understand torture’s true evils.

David Luban identifies a troubling puzzle: veneration of individual rights makes torture immoral in democracies, but the same liberal ideas appear to justify interrogational torture in times of emergency.[40] Liberal democracies, governments of limited powers, exercise authority for discrete purposes. Thus, interrogational torture, ostensibly conducted solely for the purpose of preventing harm, is the one form of torture liberals can reconcile within a political philosophy founded on individual rights from government interference. Luban terms this exception the “Achilles’ heel of absolute prohibitions” on torture:

as long as the intelligence needs of a liberal society are slight, [the possibility of torture] remains dormant . . . [b]ut when a catastrophe like 9/11 happens, liberals may cautiously conclude it is ‘Time to Think About Torture.’[41]

Having established that sometimes necessity is a sufficient justification for liberals to support torture, Luban dismisses the efficacy of using the ticking time bomb scenario in moral discourse for two reasons. First, Luban maintains the hypothetical is a misrepresentation of the uncertainty and imperfect knowledge that exists in real national security scenarios.[42] Second, the ticking time bomb assumes that the decision whether or not to torture is a one-off event, whereas the real world is a sphere of practices and institutions, not ad hoc individual decisions.[43]

Jeremy Waldron argues for the universal prohibition against torture as a legal absolute.[44] For Waldron, interrogational torture, like the practices John Yoo and Jay S. Bybee condoned in legal memoranda[45] for the George W. Bush Administration, are repugnant “to the spirit of our law.”[46] Waldron surveys various legal sources—from English common law to modern international human rights conventions and U.S. constitutional law—to argue that the prohibition on torture is a “legal archetype” expressing the abstract foundation of our law that “law can be forceful without compromising the dignity of those whom it constrains and punishes.”[47] The legal notion that torture is wrong supports our understanding of other practices, such as coerced confessions, police brutality, and corporeal punishment in prisons. Our confidence that such practices are wrong “depends partly on analogies we have constructed between them and torture.”[48] Therefore, undermining the prohibition against torture calls into question the illegality of other dubious practices.

Where do Luban and Waldron fit within the story I am telling? Luban’s diagnosis that interrogational torture is a sort of paradox for modern liberal democracies places ethics in the context of political realities.[49] Liberals may justify interrogational torture as a means to protect state security but run into problems when asked to reconcile the violation of individual rights with their notion of liberty, autonomy, and limited government. This politics traces the same lines as the consequentialist versus deontological debate introduced above. Meanwhile, Waldron is useful for contemplating one perspective of institutionalization: the formal legalization of torture.[50] My own argument extends Waldron’s “legal archetype” to a broader, less juridical conception that envisions a role for society.[51]

If a satisfactory moral framework seeks to provide a comprehensive account of the continued prevalence of interrogational torture in liberal democracies, then it must make a place for public approbation of torture. At the beginning of this essay, I introduced several examples, such as public polling data and recent remarks from President Trump, which indicate that support for interrogational torture is rising in the U.S.[52] The remainder of this paper takes one step toward creating a socio-institutional framework for understanding the immorality of supporting interrogational torture.

A. Society and Torture

As a preliminary matter, we must consider whether it is defensible to consider aspects of outside of the pain and suffering torture brings to the victim and, often, the torturer. I argue that it is. Both consequentialist and deontological assessments of the ticking time bomb operate beyond the walls of the torture chamber. Consequentialists bring in extra variables and conditions from the real world, while weighing the welfare benefit or social utility of committing torture.[53] Kantians may reject my premise, but any rights-based approach that is to seriously grapple with the ticking time bomb scenario (i.e., non-absolutist positions) must draw on practical aspects, such as uncertainty and politics, outside of the coercion of the torture victim’s autonomy to argue against interrogational torture. Thus, my argument for extending the discussion to include society does not seem to be too far removed from the contours of the existing debate. Having established this, I move to the five elements of my framework.

First, we must understand interrogational torture as a practice. The FBI agents in my version of the ticking time bomb or the German police officers in the Gafgen case faced the question of whether to use torture in a specific situation, but these decisions did not happen in a vacuum.[54] Police officers and other government authorities draw on their training and experience in responding to emergencies. Interrogational torture, whether officially sanctioned or not, is one tool in the set of possible reactions to a perceived crisis. Thus, our moral analysis should recognize that a justification for an individual instance of interrogational torture has both a past and is part of the present. In other words, the decision to torture is embedded with the experience of previous situations of torture (a past) and will influence the decision in future similar scenarios (a present). Moral authorization to torture the terrorist to stop the ticking time bomb then is more complicated than the immediate harms inflicted upon the victim.

Second, having established that interrogational torture is a practice with a past and present, it must be fixed in institutions. Traditionally, we understand the institutions of interrogational torture to be security and military forces, such as the CIA or local police. These organizations are at the frontlines of torture. However, we must expand the scope of institutional responsibility to other institutions, what Gordon calls “traditions,” beyond the walls of the jail cell including Congress, the judiciary, the press, academics, religion, and society in general.[55] Each of these institutions has a role in the discourse about the practice of torture in the United States and are “invoked whenever a president or an editorial writer talks about the contradiction [or agreement] between torture and “American values”—and when an audience responds to that invocation.”[56] These institutions help define and refine torture as a practice, and those who face the decision of whether or not to torture rely on such traditions in making their individual moral choices.

Third, these institutions create social archetypes of torture. In his analysis of the legal sources of torture, Waldron argues that certain bodies of law possess individual provisions, either explicit or implicit, that “by virtue of its force, clarity, and vividness express the spirit that animates the whole area of law . . . becoming a sort of emblem, token, or icon of the whole.”[57] These legal “archetypes” carry normative significance beyond their immediate content, epitomizing the spirit of a whole idea of doctrine.[58] Such archetypes exist beyond the narrow set of positive and common law that Waldron addresses. What does a social archetype of torture include? Take for example the popular television series 24, which, according to one study, depicted sixty-seven scenes of torture in its first five seasons.[59] I am not suggesting that there is a direct causal link between watching 24 or hearing President Trump campaign remark to bring back waterboarding and “a hell of a lot worse.”[60] My point is that we must consider the public treatment of torture within the moral discussion. Like the law, social expressions, such as media and the statements of public officials, become emblematic on certain issues over time. They create their own social archetypes on torture.

Fourth, institutionalized torture is always a moral wrong. We have a duty to not use institutions to perpetuate torture. Thus far, I argued that torture is (1) a practice, within an (2) institution, that (3) that must be considered in its broad social context. So, what is wrong with interrogational torture? And what extra considerations are taken into account within my broader social framework?

I agree with the basic deontological position on torture. Interrogational torture is wrong because of the way it uses pain and threats to coerce an individual, who is completely defenseless, to use her rational will against herself to achieve some end that she, the victim, does not share. To understand torture as a practice means that one cannot simply reject the deontological view in favor of possibly saving lives in a given case. Instead, my account requires one to consider the past and future instances of torture—the context in which the present moral question arises. Accepting that torture is an institutional practice adds an additional layer to the analysis. The decision to use torture assigns responsibility to the torturer, but also the institutions that form the environment in which the torture occurs. Therefore, a full accounting of liability must consider assigning moral blame to the institutions that perpetuate the social archetype of torture.

Fifth, a positive contribution to the social archetype of torture is a moral wrong and deserves condemnation. It is impossible to determine whether a president’s remarks or a museum exhibit that allows children to play with an interrogation device lead to more torture.[61] But we observe that these examples contribute to our social environment and discourse on torture and that the social environment overlays the institutions where torture takes place. I am not equating the moral evils of torturing a victim with expressing one’s opinion in a public poll. What I contend is that contributing to a pro-torture valence in society constitutes a moral act that contributes to the overall institutional/environmental conditions under which torture thrives. Perhaps this was a less plausible argument in the early days of the War on Terror, but now America knows about torture. We know about CIA black site prisons and extraordinary rendition.[62] We know about Abu Ghraib and Guantanamo Bay. And we know about the legal justifications that were purported to absolve the United States’ actions. In short, we are morally culpable in continuing an environment that allows torture.

A recent paper[63] suggests empirical data may back a premise to my moral claim that popular consumption of torture is widespread. Casey Delehanty and Erin Kearns coded the incidents of torture in the top twenty grossing films for the years 2008-2017. The research produced two thought provoking take-aways for the purposes of this essay. First, depictions of instrumental torture were effective most of the time. Second, protagonists were more likely to use instrumental torture in response to a specific, existing threat, while antagonists were more likely to use torture solely for the purpose of punishment. To restate in blunt terms, interrogational torture is depicted as a valid (and effective) tool in the superhero’s toolbox. Delechanty and Kearns are rightfully careful about the limits of their study and do not suggest a causal relationship between portrayals of torture and the use of torture in the real world. More research is needed on whether watching an “effective use” of torture in films produces a statistically significant increase in an individual’s likelihood of supporting the use of torture in the war on terror, for example. For the purpose of this essay, Delehanty and Kearns’ preliminary research underlines the relevance and urgency of my argument for including a role for society in the moral discourse around torture.

In this section, I articulated five points on torture. The first three points argued that we need to expand the moral universe when we talk about interrogational torture and ticking time bombs. (1) We must understand torture as a practice; not a one-off occurrence. (2) This practice is informed by and carried out in institutions, which possess pasts and futures. (3) There is an important social layer that is part of the environment of torture. Next, I began to describe the immorality of contributing to the social archetype of torture. (4) Torture is an inherent evil that must be understood in terms beyond the immediacy of the scenario in question. The decision to torture in the ticking time bomb scenario creates individual, as well as institutional moral blame. (5) Finally, I argued that contributing to the social archetype of torture is a moral act that deserves blame.

III. Conclusion

In December 2019, the Times published drawings done in captivity by Abu Zubaydah, the first CIA prisoner know to undergo “enhanced interrogation” at Guantanamo Bay.[64] One image shows Zubaydah, his legs and arms bound, stuffed into a rectangular box—similar to the one a visitor to the International Spy Museum can experience—in an approved torture technique known as “cramped confinement.”[65] Other pictures depict waterboarding and stress positions, such as “short shackling,” a technique where the detainee is tethered in the fetal position to a cell bar. The sketches are as horrifying and powerful as Zubaydah’s now declassified account of his experience he provided his attorney. The story is not an aberration.

During her Senate Intelligence Committee confirmation hearings, Gina Haspel, President Trump’s nominee to lead the CIA, described the use of interrogational torture as a lapse and promised that under her leadership the agency “will not restart a detention and interrogation program.”[66] Senator Kamala Harris (D-CA) asked Haspel a direct question: “Do you believe that the previous interrogation techniques were immoral?”[67] Haspel responded, “I believe that the CIA did extraordinary work to prevent another attack on this country, given the legal tools that we were authorized to used.”[68] This was a bridge too far for then Senator John McCain (R-AZ), himself a victim of torture during the Vietnam War.[69] “[Haspel’s] refusal to acknowledge torture’s immorality is disqualifying,” McCain concluded.[70] Haspel was confirmed by the full Senate along party lines a few days later. Implicit in Haspel’s remarks is the notion that America, as the world’s leading democracy, does not torture. But, as W. Fitzhugh Brundage argues, there has been an American tradition of torture from the country’s founding to the modern day.[71]

Accordingly, so long as there are terrorist threats and other serious crimes, interrogational torture will be justified to protect another attack on this country or to save an innocent child. Despite the likelihood that some forms of torture will persist, our moral understanding of the wrongs of torture does not have to be stagnant. This essay asserted a broader conception of the moral framework surrounding torture. Specifically, I argued for a wider contextualization of the ticking time bomb scenario that includes a role for social archetypes of torture. Only after fully understanding the social dynamics of torture may we begin to uproot its existence­­­­­.

 

Alec Albright: J.D. 2020, UC Berkeley School of Law and California Law Review Vol. 108 Associate Editor. I am indebted to Professor Christopher Kutz and the Foundations of Moral Philosophy Seminar student participants for their invaluable contributions in guiding my thinking for this essay.

[1] See Daniel J. Jones, The CIA Tortured Prisoners. Americans Should Know the Truth, The Washington Post (December 11, 2019), https://www.washingtonpost.com/opinions/the-cia-tortured-prisoners-americans-should-know-the-whole-truth/2019/12/11/2ec54b32-1c4f-11ea-b4c1-fd0d91b60d9e_story.html [https://perma.cc/WA39-XFG5].

[2] Bruce Drake, Americans’ views on use of torture in fighting terrorism have been mixed, Pew Research Center, December 9, 2014, https://www.pewresearch.org/fact-tank/2014/12/09/americans-views-on-use-of-torture-in-fighting-terrorism-have-been-mixed/[https://perma.cc/F8QD-C622].

[3] See Rebecca Savransky, Retired Generals warn Trump not to bring back torture for terrorism suspects, The Hill, January 10, 2017, https://thehill.com/policy/defense/313461-retired-generals-warn-trump-not-to-bring-back-torture-for-terrorism-suspects [https://perma.cc/P38S-JXMF].

[4] “Donald J. Trump, President of the United States, State of the Union Address (Jan. 30, 2018), available at https://www.whitehouse.gov/briefings-statements/remarks-president-trump-state-union-address/ [https://perma.cc/5N5G-FLXC].

[5] See Darius Rejali, Torture and Democracy 36-39 (Princeton and Oxford: Princeton Univ. Press 2007) (quoting the Roman jurist Ulpian).

[6] Cesare Beccaria, On Crimes and Punishment, The Federalist Papers Project 24 https://www.thefederalistpapers.org/wp-content/uploads/2013/01/Cesare-Beccaria-On-Crimes-and-Punishment.pdf [https://perma.cc/AVB6-TQSZ] (last visited May 24, 2020).

[7] Henry Shue, Torture, in 7 Philosophy & Pub. Affairs, no. 2, 1978, at 132-33. In his list of historical purposes for torture, David Luban distinguishes “extracting confessions” from “intelligence gathering.” The former refers to pre-modern legal rules that required confession for criminal convictions. The latter, which focuses on gathering information to prevent some future harm, is similar to Shue’s notion of “interrogational torture.”

[8] This is not to say that interrogational and terroristic torture never overlap in practice.

[9] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 2, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85, available at https://www.refworld.org/docid/3ae6b3a94.html [https://perma.cc/5WRV-EKXH].

[10] David Sussman, What’s Wrong with Torture?, in 33 Philosophy & Pub. Affairs, no. 1, 2005, at 4-5.

[11] See id. at 6-7.

[12] See id.

[13] The case of Gafgen v. Germany is illustrative of the perils of interrogational torture. In that case, German police officers threatened a suspected kidnapper with torture unless he disclosed the location of the missing child, who was thought to still be alive. The police justified their actions as necessary to save the child. However, the child was already dead. No amount of harm to the suspect could provide the end that the police sought. See Gafgen v. Germany, App. No. 22978/05 (Eur. Ct. H.R. June 30, 2008). 

[14] For a general overview of the ticking time bomb scenario, see Seumas Miller, Torture, in The Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2017), available at https://plato.stanford.edu/archives/sum2017/entries/torture [https://perma.cc/TN5C-TM7N].

[15] Fritz Allhoff, Terrorism and Torture, in 17 International Journal of Applied Philosophy, no. 1, 2003, at 115.

[16] Alan Dershowitz, The Torture Warrant: A Response to Professor Strauss, 48 N.Y.L.S. L. Rev. 275 (2003).

[17] See id. at 277.

[18] Oren Gross, The Prohibition on Torture and the Limits of the Law, in Torture: A Collection 229 (Sanford Levinson ed., 2004).

[19] Id. at 244.

[20] Id.

[21] On the efficacy of interrogational torture, Darius Rejali concludes: “organizational torture yields poor information, sweeps up many innocents, degrades organizational capabilities, and destroys interrogators. Limited time during battle or emergency intensifies all these problems.” See generally Rejali, supra note 5, at 446-79 (considering whether torture can be “precise, scientific, professionally administered, and yield accurate information in a timely manner”).

[22] See Rejali, supra note 5, at 463.

[23] See e.g., Gross, supra note 18, at 236-38 (arguing for the permissibility of interrogational torture to thwart ticking time bomb scenarios in “catastrophic cases,” where major loss of innocent lives is all but guaranteed).

[24] Id.

[25] See generally Henry Shue, Fighting Hurt: Rule and Exception in Torture and War (Oxford: Oxford Univ. Press 2016).

[26] Sussman, supra note 10, at 15.

[27] Id. at 4.

[28] Henry Shue, Torture in Dreamland: Disposing of the Ticking Bomb, 37 Case W. Res. J. Int’l L. 231 (2006).

[29] Id. at 237.

[30] Michael Davis, The Moral Justification of Torture and other Cruel, Inhuman, or Degrading Treatment, in 19 Int’l J. of Applied Philosophy no. 2, 2005, at 161-78.

[31] Id. at 165.

[32] See id. at 170.

[33] Here, I am thinking about the uncertainties inherent in a scenario where an alleged terrorist may possess information that could prevent loss of civilian life. In other words, the argument that ticking time bomb scenarios are fanciful thought experiments does not provide a satisfactory positive account about what is morally permissible in hard cases.

[34] See Miller, supra note 14.

[35] See e.g., Shue, supra note 28, at 237 (arguing that torture is an institutionalized practice).

[36] See Rejali, supra note 5.

[37] Rebecca Gordon, Mainstreaming Torture: Ethical Approaches in the Post-9/11 United States 102 (Oxford and New York, Oxford Univ. Press 2014).

[38] Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House, 105 Colum. L. Rev. 1681, 1681-1750 (2005).

[39] David Luban, Liberalism, Torture, and the Ticking Bomb, 91 Va. L. Rev. 1425, 1425­­­–61 (2005).

[40] Id. at 1426-27.

[41] Id. at 1439.

[42] Id. at 1440-45.

[43] Id. at 1445.

[44] See Waldron, supra note 38, at 1709.

[45] See Memorandum from John Yoo, Deputy Assistant Att’y Gen., & Robert J. Delahunty, Special Counsel, to William J. Haynes II, Gen. Counsel, Dep’t of Def. 1 (Jan. 9, 2002); Memorandum from Office of the Assistant Att’y Gen. to Alberto R. Gonzales, Counsel to the President (Aug. 1, 2002).

[46] See Waldron, supra note 38, at 1717.

[47] Id. at 1727.

[48] Id. at 1735.

[49] Luban, supra note 39, at 1436.

[50] See Waldron, supra note 38, at 1726-34.

[51] See id.

[52] See supra notes 2, 3.

[53] See Davis, supra note 30, at 170.

[54] See supra note 13.

[55] See Gordon, supra note 37, at 123-24.

[56] Id.

[57] See Waldron, supra note 38, at 1722.

[58] Id.

[59] See Jane Mayer, “Whatever It Takes: The Politics of the Man Behind 24,” The New Yorker, Feb. 11, 2007 https://www.newyorker.com/magazine/2007/02/19/whatever-it-takes [https://perma.cc/X3FU-L2B8].

[60] See Tom McCarthy, Donald Trump: I’d Bring Back ‘a Hell of a lot Worse than Waterboarding,’ The Guardian, Feb. 7, 2016, https://www.theguardian.com/us-news/2016/feb/06/donald-trump-waterboarding-republican-debate-torture [https://perma.cc/D3VV-FMMP].

[61] See Jones, supra note 1. I do not mean to disqualify all public exhibitions related to torture as morally wrong. For example, the powerful exhibitions at National Museum of African American History and Culture in Washington, D.C. remind us of the evils of slavery and the violence used in that coercive system. In short, my moral inquiry is something like whether participation in the exhibition is for educational and historical awareness purposes or for entertainment value.

[62] See e.g., Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals (New York: Doubleday 2008).

[63] Casey Delehanty & Erin Kearns, Wait, There’s Torture in Zootopia?: Examining the Prevalence of Torture in Popular Movies, Perspectives in Politics (forthcoming Dec. 11, 2019), available at https://ssrn.com/abstract=3342908 [https://perma.cc/5BCR-J2FW].

[64] Carol Rosenberg, What the CIA’s Torture Program Looked Like to the Tortured, The New York Times, Dec. 4, 2019, https://www.nytimes.com/2019/12/04/us/politics/cia-torture-drawings.html [https://perma.cc/UK2E-AFGS].

[65] See supra note 1.

[66] Open Hearing: Nomination of Gina Haspel to be the Director of the Central Intelligence Agency Before the Select Comm. on Intelligence, 115th Cong. (2018), at 12, available at https://www.intelligence.senate.gov/sites/default/files/hearings/CHRG-115shrg30119.pdf [https://perma.cc/ST8H-3LTQ].

[67] Id. at 39.

[68] Id. at 40.

[69] See Elana Schor, “McCain Urges Senate to Reject Haspel for CIA,” Reuters, May 9, 2018, https://www.politico.com/story/2018/05/09/mccain-haspel-senate-cia-579882 [https://perma.cc/G7EZ-Y2R7].

[70] See Amy Davidson Sorkin, Gina Haspel and the Enduring Questions About Torture, The New Yorker, May 10, 2018, https://www.newyorker.com/news/our-columnists/gina-haspel-and-the-enduring-questions-about-torture [https://perma.cc/MEA7-JUEF].

[71] See W. Fitzhugh Brundage, The American Tradition on Torture (Belknap Press of the Harvard Univ. Press 2018).

Recommended Citation: Alec Albright, Torture and Morality: Does Society Matter?, Calif. L. Rev. Online (June 2020), https://www.californialawreview.org/torture-and-morality.

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