(via Tim Dunlop) Australian law academics Mirko Bagaric and Julie Clarke are apparently about to publish an article in the University of San Francisco Law Review arguing that the use of torture, even if it leads to “annihilation” of the tortured suspect, should be lawful and is a “morally defensible” means of interrogation in certain extreme circumstances! They outline their argument in this morning’s SMH.
My immediate (and considered) reaction is that such a position is not defensible (morally or otherwise) under any circumstances. But whether it should be taboo even to discuss such issues, as some are arguing, is another question. For example, when does aggressive and somewhat intimidatory interrogation of a suspect become torture?
The hypothetical situation Bargaric and Clarke deploy to justify their argument predictably relates to September 11:
“Let’s say that straight after the first plane hit in New York you had a person in custody who admitted they had overheard the S-11 organisers’ plans and knew there were going to be further attacks, but then refused to say any more. In those circumstances you would start with a minimum degree of harm, if that didn’t work, you would escalate it.
“And if that unfortunately resulted in an innocent person being killed, in those circumstances that would be justified. I think as a society we would accept that one person being killed to save thousands is legitimate.”
But interrogators would seldom if ever possess even that degree of knowledge of what the suspect knew and could potentially tell them, let alone the additional knowledge that whatever information they might be able to extract would necessarily assist materially in preventing further deaths.
And in any event, is this an issue that we should approach by purely utilitarian calculation, or does it illustrate that Kant was right about there being irreducible moral propositions flowing from treating every person as an end rather than a means?
But what about the moral dilemma discussed in the immediate aftermath of September 11, which could easily not have been hypothetical had someone put all the available information together more quickly in the wake of the first plane hitting the World Trade Center tower? Is it morally justifiable to shoot down the other planes containing hundreds of innocent passengers in order to save the lives of thousands? Again, does it depend on the degree of certainty that the planes will be flown into a tower if we fail to act pre-emptively? Does it help if we know they’re going to die anyway, whether we shoot down the plane or not?
And how does the “shooting down the planes” moral dilemma compare with that of torturing a suspect to extract advance information about September 11? Only a single innocent person’s life is imperilled by application of torture (compared with hundreds sacrificed on the planes), and that person’s innocence is only partial given that they know about something so horrendous and yet seemingly unreasonably refuse to disclose it even though that disclosure could prevent thousands being killed. But what if the suspect knows that she (or her children who are being held captive by the hijackers) will be killed if she talks? Does that make any difference to the calculus of the morality of torture?
Maybe we can reasonably reject torture as an option anyway, by application of rule utilitarian methods, without needing recourse to Kant or any other form of deontological approach. The probability of knowing enough in advance to be able to make a reasonable calculation of the utility of torture (i.e. about what the suspect knows and could tell us, and whether it could assist materially in preventing a major catastrophe) is so low as to discount the utility of making a general rule legalising torture. Moreover, that conclusion is fortified by the much higher probability that any legalisation of torture would be abused and frequently used in much less extreme situations than the one Bagaric envisions, whatever ostensible safeguards were enacted.
Or maybe application of the more complex, but also more difficult to pin down, virtue ethics can help us resolve the dilemma. It’s difficult to imagine that we could label legalisation of torture as either virtuous, involving practical wisdom or tending towards eudaimonia. But since virtue ethics is mostly “agent-centred” rather than “act-centred”, flowing as it does from Aristotle’s old question of what is the good life and how does one live it, maybe it isn’t well suited to helping us answer such a specific question.
What do you think? The price of liberty is said to be eternal vigilance. But what does that mean or require?