Torturing freedom

(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?

Update – John Quiggin and Robert Merkel also deal with the issue.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Robert Merkel
2021 years ago

Ken, surely the rule utilitarian case is compelling enough, given the ticking-bomb scenario is so rare. Shouldn’t you also factor in the considerable negative utility of the succor such a rule would give to those who currently use torture?

blank
blank
2021 years ago

Isn’t the main arguement against torture the simple fact that the “information” gained is unreliable?

When tortured, people will say almost anything to stop the torture. Plenty of well recorded examples of that throughout history.

The “annihilation” of subject would be tantamount to a death sentence based on suspicion. How could that ever get round the notion of “due process”?

Ken Parish
Ken Parish
2021 years ago

Blank (and Robert)

I agree. I haven’t read Bargaric and Clarke’s article (since it isn’t published yet), but I assume they’re not actually advocating deliberate killing of suspects. Rather, I assume they’re suggesting that extreme torture, which might accidentally result in death of the suspect/victim, could be justified in extreme circumstances. But, of course, even that would surely lack any element of due process. No doubt that irremediable difficulty is one reason why the Bush administration appears to be keeping suspects offshore for torture purposes, in such enlightened places as Egypt and Pakistan. The prospect of securing the necessary amendment of the US Constitution would be very small. Then again, there appear to be various Bush legal lackies who favour torture. Maybe Bush could consider offering Bargaric American citizenship and then appointing both him and Alberto Gonzales to the Supreme Court, where they could creatively re-interpret the 5th Amendment in a suitably 19th century laissez-faire manner.

Evil Pundit
2021 years ago

Oh, not that Gonzales furphy again!

Requesting a legal opinion on what does and does not constitute torture is not the same thing as advocating torture.

The problem with trying to debate this issue is that it inevitably degenerates into political smearing of political opponents.

jen
jen
2021 years ago

quick parish

and evil right on time too

What is it about humans against all evidence to the contrary that convinces us that live and let live is not a viable option?

Surely we are imaginative enough to be able to live opposing ideological lifestyles without destroying each other or the planet.

Or is violence and destruction sensible too. ‘our nature’. That must be it.

so folks signing off on the blleedin bloody obvious till next time

Geoff Honnor
Geoff Honnor
2021 years ago

“For example, when does aggressive and somewhat intimidatory interrogation of a suspect become torture?”

Good question. I hope Dr Bagaric’s paper might provide us with his reflections thereupon. Until we see it I’m none-the-wiser as to how Bagaric frames ‘torture’ and I’m holding off on participation in any torchlit processions of foam-flecked indignation until we do.

Mindy
2021 years ago

This makes my stomach churn. Safely ranting on about torture in the knowledge it will never be applied to them. It’s all very well to go on about the greater good, and oh well we tortured that one to death and they didn’t actually know anything etc etc when it’s never likely to be you. If one of them were in the same situation I think they’d change their minds pretty damn quick. There is no excuse for torture. Intelligence gathering should be better than that. If you have to resort to torture then you are doing something wrong.

Ken Parish
Ken Parish
2021 years ago

Geoff

I’ve inserted a link to Bagaric and Clarke’s article in this morning’s SMH, which outlines their argument pretty well. Moreover, the fact that they condone methods that may result in a suspect’s death clearly indicates that they’re not just talking about denying someone a cigarette, or even stripping them naked and having a female army private point and laugh at their genitals.

Mark Bahnisch
Mark Bahnisch
2021 years ago

The purpose of torture is normally more related to creating a climate of fear than any genuine search for information – see the link at my post:

http://larvatusprodeo.redrag.net/2005/05/17/tortuous-reasoning/

Evil Pundit
2021 years ago

The purpose of left-wing posts about torture is more to smear the right than promote any serious discussion of the issue. See Mark’s post at:

http://larvatusprodeo.redrag.net/2005/05/17/tortuous-reasoning/

Francis Xavier Holden
2021 years ago

The Indonesians (and a few others) think that drugs, including dope, are as bad as murder or terrorism as they give them the same death penalty. I’d assume that Bagaric and Clark think Corby should be tortured to within an inch of her life because so far she hasn’t admitted to any useful information. Certainly the other Bali heroin smugglers should be tortured on this reasoning too as heroin may well kill more people than terrorism has.

jen
jen
2021 years ago

FXH

‘as heroin may well kill more people than terrorism has.’

yeah but you do actually have to choose to take heroin – whereas a bomb or aeroplane blasting your body is more of an imposition over which you have very little control.

Mindy
2021 years ago

True Jen, but I think FXH’s reasoning still holds. If you are torturing people for the greater good, then it doesn’t matter what it is they are doing, and whether involvement in the end process is voluntary or involuntary.

Mark Bahnisch
Mark Bahnisch
2021 years ago

http://www.theage.com.au/news/National/Professors-torture-comments-terrifying/2005/05/17/1116095944612.html

“Professor Bagaric said he was not an authority on torture methods, but also said the preferred form of torture should be sticking needles under people’s fingernails to cause excruciating pain.”

Dave Ricardo
Dave Ricardo
2021 years ago

According to story on the Age’s website

“Professor Bagaric said he was not an authority on torture methods, but also said the preferred form of torture should be sticking needles under people’s fingernails to cause excruciating pain.”

Not much chance of that happening here, but maybe one day he’ll back in Serbia, or Croatia, or wherever he comes from, and someone will stick needles under his finger nails to extract information from him.

Not that I’d wish it on him, of course.

Dave Ricardo
Dave Ricardo
2021 years ago

Sorry Mark, but your comment was there when I was writing mine!

Dave Ricardo
Dave Ricardo
2021 years ago

That should be, “wasn’t there”.

Seriously, this guy’s judgment leaves a lot to be questioned. A journalist rings him up and asks him what kind of torture he favours, and he actually answers the question!!??

Not the sort of person who should be on the refugee tribunal, IMO.

AlanDownunder
AlanDownunder
2021 years ago

Since anti-torture laws are routinely broken without a shred of utilitarian justification, why even bother to address the need to legalise torture? In practical terms, we have a restriction problem, not an enablement problem.

If a utilitarian justification actually existed, what chance that a nominally criminal torturer would ever be prosecuted? It’s hard enough getting non-utilitarion torturers above the rank of corporal prosecuted, as it is.

Maybe the rationale for legalising torture is like the rationale for legalising recreational drugs – to attack the “black market” in torture. But since the black market is intra-State, not free enterprise, what’s the point?

Ken Parish
Ken Parish
2021 years ago

If you read Bargaric’s attempted justification in this morning’s SMH and Age, it is apparent that he is attemtping an ethical/moral apologia for torture rather than a utilitarian/consequentialist one, although there are some half-baked consequentalist arguments there as well (usually conflated with equally half-baked moral propositions). The article is extraordinarily incoherent as well as deeply offensive. I’ll be interested to see whether the full journal article is as bad. It certainly wouldn’t say much for the integrity of University of San Francisco’s peer review process.

Mark Bahnisch
Mark Bahnisch
2021 years ago

No probs, Dave – the first thing I thought when I read his comments in the Age was that he was foolish to talk to the media in those terms.

Mindy
2021 years ago

Perhaps in the interests of scientific rigour the authors of the paper could undergo various tortures so they can name the most effective, in their view. If one of them dies in the process, well then we know not to use that one, and that’s got to be for the greater good, right?

PB
PB
2021 years ago

What about people who sit through Big Brother? Torture, certainly- and iny information you get from them is gibberish. Case closed.

Ken Parish
Ken Parish
2021 years ago

PB

Yes, although I’ve never had sharp needles inserted under my fingernails, it’s hard to imagine that it could be very much worse than being forced to watch Big Brother. Luckily jen seems to dislike BB too, so I don’t need to retreat to the bedroom to blog. At least that means I can stay in the loungeroom until Desperate Housewives starts – although I actually don’t mind that in small doses. I’m much more partial to soap operas than “reality” TV shows. It’s probably a sign of ageing and consequent grumpiness.

jen
jen
2021 years ago

Isn’t torture par for the course when conflict arises? i couldn’t be absolutely sure but I’d say torture has a fairly long tradition. I’d say it’s been going on for some time.

Given the practice will continue. What is the problem with regulating it?

Apart from the fact that regulation may not make much difference to ‘torture’

Or would it? I might even read that article you know. Nah, Parish can yell me the guts of it.

Dave Ricardo
Dave Ricardo
2021 years ago

“It’s probably a sign of ageing and consequent grumpiness”

Naah, just those large breasted, 40-ish suburban women – every middle aged male’s fantasy, or so I’ve been told.

Back to Bargaric. I know we’re supposed to tolerate wacky academics and encourage their wacky ideas, but this guy is creepy. Needles under the fingernails, indeed. You wouldn’t want to be a law student at Deakin accused of cheating on your exam …

Rob
Rob
2021 years ago

On the general question of torture – including the use of aggressive or intimidatory interrogation – maybe the old test of ‘reasonable and proportionate’ applies.

Early in the Iraq campaign, the right in the US got conspicuously agitated about what was arguably a case in point. A bunch of Marines holed up near Tikrit got reliable word of a suicide attack on them and the civilians they were protecting, and managed to capture one of the would-be attackers. They went through all the ‘accepted’ interrogation processes to no avail. Then the Colonel in charge took him outside, pushed his head in a sandpit, put the barrel of his handgun next to the guy’s head, and fired a shot into the sandpit. The suspect then came good with the details of the plan and a major catastrophe was averted. For this the colonel was court-martialled and demoted, btw.

Without wanting to duck the moral and ethical issues involved, I think you could make a case that the colonel’s action was both reasonable (no actual infliction of physical pain, but inducement of a state of fear of death) and proportionate (the lives of dozens of people, including civilians, were at stake). What happened at Abu Ghraib, on the other hand, was clearly neither reasonable nor proportionate, even though arguably less traumatic.

At least this kind of test avoids the moral absolutism and emotionalism that this article has generated around the blogosphere.

Ken Parish
Ken Parish
2021 years ago

Rob

A fair point and a useful, challenging example. I’m not sure I accept that your example is reasonable or proportionate behaviour, but I’m not sure it isn’t either. However, this is an argument about what constitutes torture and what doesn’t, rather than Bagaric’s argument that imminent danger of a major catastrophe justifies any form of torture. Maybe in situations of imminent serious danger (especially a terrorist attack, the engendering of immediate deep fear in a suspect, but not actual physical pain, might be justified. Ordinary and generally accepted criminal interrogation techniques often involve a degree of threat, both express and implied, of adverse consequences if the suspect doesn’t co-operate. Your example is a substantial step beyond that, but then so is the threatened harm the interrogator is trying to prevent.

Rob
Rob
2021 years ago

Much turns on what kinds of activities are defined as torture, Ken. I may have missed it but in the SMH article the authors do not define what they mean by the term. So it’s difficult to form a position on the merits of their arguments.

Many people immdiately think of thumbscrews and hot coals, but techniques that do not cause immediate physical pain are still regarded as torture: sleep deprivation, hooding for long periods, etc. A few years ago the Israeli Supreme Court ruled these latter constituted torture and were illegal under Israeli law, much to the dismay of the IDF and the security services, one suspects.

When you consider the range of possible techniques that could be deployed – threats, fear, or ensory deprivation as alternatives to actual physical injury – I think it’s a little simplistic to say never under any circumstances.

Ken Parish
Ken Parish
2021 years ago

Rob

As I said in answer to a previous comment by Geoff Honnor, Bagaric and Clarke may not specify exactly what they mean by torture in the article, but they DO suggest that killing someone (accidentally?) under torture might/should be morally and legally justified in extreme circumstances. Therefore they clearly have in mind the infliction of extreme physical pain, since mental stress (engendering of fear) generally doesn’t result in death unless the suspect has a weak heart or something. This is confirmed by Bagaric’s off-the-cuff reference to needles under fingernails as a preferred method!!!!.

We can certainly sensibly discuss where the boundaries between torture and legitimate interrogation techniques should be drawn in a major terrorism prevention scenario, but that isn’t what Bagaric and Clarke are doing. They’re trying to make a moral/ethical case for torture in general, including severe and life-threatening physical pain methods, and that’s deeply abhorrent on any reasonable view. This is not an issue where a principled apologia is possible in my view. Do you accept that infliction of physical pain is torture and always unacceptable? I think we need to be absolutist to that extent at the very least, otherwise we really ARE on the slippery slope.

Evil Pundit
2021 years ago

Defining torture merely as “physical pain” isn’t good enough.

Keeping a suspect in a cell without a comfy chair for a few hours will result in a sore bum. That isn’t torture.

Getting a good definition won’t be easy.

Ken Parish
Ken Parish
2021 years ago

EP

I don’t think defining torture in immediate physical pain infliction terms is really all that hard. But what about sleep deprivation, thirst, hunger etc? In ordinary definitions, this is torture. But maybe not in the case of a genuinely imminent suspected major terrorist event (as opposed to seeking general intelligence info on terrorism). And what about engendering humiliation rather than fear? This is mostly what they did in Abu Ghraib. In ordinary circumstances that is torture too, and utterly unacceptable in my view.

But what about where there is a reasonable suspicion of an imminent major terrorist attack? Again I’m less certain, but maybe it could be defended if you could make a strong consequentialist case for its efficacy. That’s where I suspect the whole thing comes unstuck. As others have commented, any form of torture (including engendering immediate fear and/or humiliation) tends to extract “confessions” or information that are dubiously reliable at best. So is there a utilitarian point in accepting a more relaxed definition of torture in cases of reasonable suspicion of imminent major terrorist attack? I doubt it, but I don’t reject it out of hand on absolutist moral grounds.

Geoff Honnor
Geoff Honnor
2021 years ago

“I don’t think defining torture in immediate physical pain infliction terms is really all that hard. But what about sleep deprivation, thirst, hunger etc? In ordinary definitions, this is torture. But maybe not in the case of a genuinely imminent suspected major terrorist event (as opposed to seeking general intelligence info on terrorism). And what about engendering humiliation rather than fear?”

Isn’t this where we were earlier? It seems to me that Bagaric isn’t advocating torture as routine punishment – more as an exceptional, extremity-driven solution – but I think we need to see what he is actually saying. Frankly, I have no clear idea what “torture” is. Clearly, to many commenters, it’s anything the Bush administration does but I find that unconvincing. ” I have to tell you – shocking though it may be – that “engendering humiliation” is a technique employed by police forces, universities and shop assistants all over Australia, on a daily basis.

The shrieking about crazy out-of-control academics is reminiscent of right wing shock jocks at their worst and just like them, no-one has actually sighted the guy’s paper. Let’s actually break the mould, give him the benefit of the doubt, and then read the bloody thing…

Evil Pundit
2021 years ago

I’m not looking for a more relaxed definition of torture, but rather one that is realistic.

Not all pain is torture (even if it is deliberately inflicted), so we can’t define torture as “any infliction of pain whatsoever”. Example: A policeman drags a violently struggling suspect into a cell — pain is inflicted but it isn’t “torture”. Things like this need to be taken into account.

Also, it’s necessary to know what techniques can be legitimately used in interrogation. Electric shocks to the genitals are torture, but what about offering a cigarette only if a suspect confesses? The craving for nicotine can be unpleasant, but is it torture?

Telling a suspect that “your mates have confessed and we know everything” would undoubtedly cause mental anguish, but I’d call it a legitimate interrogation tactic and not torture.

These are questions that should be addressed when deciding what is acceptable and what isn’t.

Rob
Rob
2021 years ago

Is torture involving the infliction of severe physical pain always unacceptable?

In the case I cited it would have been. I think a reasonable person could accept that given the level and nature of the threat the colonel’s behaviour was reasonable. If he had physically tortured the suspect, I think a reasonable person would say, hang on, he’s got a company of highly trained, heavily armed soldiers at this disposal, sure there’s a threat, but they’re trained to deal with things like that, he went too far.

But try varying the scenario a bit. Say a small group of Marines were guarding a refugee encampment somewhere out in the sticks, and they catch a guy coming out who brags that he’s planted a dirty bomb somewhere in the camp that’s going to explode in 30 minutes wiping out everone, including the Marines, and won’t tell them where it it. They search the camp for 25 minutes and can’t find it. There’s no time for any of the sensory deprivation techniques. At that point do they have the moral right to beat the answer out of him?

I’m going to morally wimp it and say I don’t know.

Obviously though I do agree that the idea torturing someone to death is indefensible and inexcusable and it seems inconceivable that these guys can contemplate the prospect with equanimity.

Mark Bahnisch
Mark Bahnisch
2021 years ago

Rob, your examples all seem to assume that these techniques will produce a truthful answer. That can’t be guarenteed, and indeed if the person concerned is ideologically committed to the act of terror, is unlikely. You’re making a lesser of two evils argument with no certainty that you will in fact avoid the greater evil.

Rob
Rob
2021 years ago

The first case I cited was a real situation where the techniques employed did work, Mark. They did get the answers. As for the idea that ideological commitment is a barrier that won’t break to physical pain, I think the real hard men would just smile quietly to themselves.

I’m not advocating torture; far from it. I’m just saying maybe it’s not as simple as yes or no, and Bagaric and Clarke’s ideas deserve to be talked about. As Geoff has said, we don’t really know what their arguments are yet, at least not in detail.

This is a very old argument, actually. Remember the first Dirty Harry movie, where the Clint Eastwood character tortured a suspect to find out where a kidnapped girl was being held against a deadline for death? It caused a huge furore, some saying it would be justified in the circumstances, others not. I don’t know we are any closer to solving the problem 30 years later.

James Farrell
James Farrell
2021 years ago

Apologists for torture usually use utilitarian arguments. But in their examples the proposed victims are usually bad guys, so that in practice the torture has a back-up justification as punishment. This is why the most shocking aspect of the Bagaric-Clarke argument apparently is that it allows the torture of ‘innocent people’ as well, and why the two hasten to point out that those who protect bad guys are culpable in their own right.

But if the use of torture in a given situation can be justified on a *combination* of utilititarian and punitive grounds, then it should be able to rest on one of these grounds alone. That is, the apologists should be prepared to condone a plan to, say, kidnap Zarqawi’s five-year-old son and threaten to torture the child if hostages are not released. By the same token, they should agree that, say, sticking bamboo under a crminal’s fingernails is an acceptable form of punishment for some crimes, even when the accused hasn’t yet been convicted by a court.

On the other hand, if neither of these justifications is acceptable individually, however extreme the circumstances, how can they suddenly become acceptable just because they are applied simultaneously?

Rob
Rob
2021 years ago

Where do they argue for torture of the innocent, James? The article in the SMH specifically talks about torturing ‘wrongdoers’ and contends that such is only justifiable when its sole purpose is to save innocent life.

Rob
Rob
2021 years ago

Ok, I’ve now been to

http://www.smh.com.au/news/World/Support-for-torture-sparks-row/2005/05/16/1116095908699.html

and if what Bagaric says there has been correctly reported it is indeed monstrous.

mark
2021 years ago

When people of a certain political faction start to muse that maybe torturing people, perhaps to the point of death, isn’t as bad a thing as we’ve been led to believe by those limp-wristed latte-sippers, it’s *entirely* correct to stand up and say “that’s bloody stupid!”

What’s *also* bloody stupid is for those who hold similar opinions of that faction to look at those standing up and say, “hang on, hang on, they’re not actually torturing people yet, they’re just saying it’d be a good idea if they could. You’re all too excitable, and this discussion is bordering on anti-Americanism.”

If it’s anti-American to oppose torture, then America must be the most evil state about. Fortunately, it’s *not* anti-American to oppose torture; it’s just fucking sensible.

Evil Pundit
2021 years ago

What are you babbling about, Mark?

wbb
wbb
2021 years ago

You’re a one, aren’t you Rob. You managed to comment about this article from 17:30 until just now without having read it. No wonder you’ve been coming across real creepy tonight.

“Oh, that torture! Huh, I thought you mean the nice torture.”

Rob
Rob
2021 years ago

No, wbb, I was commenting on the SMH article that was actually *written* by Bagaric and Clarke, not the one that was linked to it.

Ken Parish
Ken Parish
2021 years ago

Rob

I not only linked the SMH story you’ve just read, but also quoted the specific “it’s OK to torture an innocent bystander with critical information” example that seems now to have at least partially changed your mind.

Mind you, although that’s possibly the most obnoxious aspect of their argument, even arguing for extreme life-threatening torture of an actual criminal/terrorist suspect is appalling as well IMO. I guess it’s there that we part company.

Rob
Rob
2021 years ago

I have a big problem with the idea of torturing anyone, but *not* an insuperable one in the specific and limited case of someone known or reasonably believed to be responsible for the intended commission of a horrific crime who cannot by any other means be persuaded to give up information that would prevent that crime from occurring.

I have a big problem, *and* an insuperable one, with using torture (of any kind) against a person who might have incidentally or innocently come into possession of information that could prevent such a crime from occurring, and who refused to give it up to any other form of persuasion.

mark
2021 years ago

The Bush Administration is, at best, “open-minded” about torture. Are we to pretend otherwise when discussing torture — or better yet, never discuss, let alone condemn, this evil practice?

If right-wingers like yourself are offended by discussions of torture, EP, it’s not because there’s something wrong with the discussion.

Rob
Rob
2021 years ago

Ken, what I’m saying is that a soldier or police officer (or whoever) who is faced with a genuine last-ditch choice between (a) inflicting pain – and it would not need to be ‘life-threatening’ – on another human being in order to save the lives of tens, hundreds or even thousands of innocent people whom he or she had personally endangered, or to whose endangerment he or she had materially contributed, and (b) helplessly watching them all die is not going to find it as easy a decision as you seem to envisage. Which would be harder to live with afterwards, I wonder? That you had hurt one man, or that you could have prevented all those deaths?

In their own article, Bagaric and Clarke are only discussing torture in those ‘in extremis’ kinds of situations, not as a routine interrogatory technique. Of course if they or we are talking about innocents, it’s completely different, and the issue of moral justification does not arise, not even remotely.

Mark Bahnisch
Mark Bahnisch
2021 years ago

Presumably the actions of your hypothetical soldier would be governed by their own conscience, and could be judged later. What Bagaric and Clarke are doing is advocating the legalisation of torture on the pretext that these ‘in extremis’ situations justify it.

Ken Parish
Ken Parish
2021 years ago

Rob

But what you’re carefully ignoring is the point that I and others have made repeatedly, namely that the intelligence gained in such circumstances will more than likely be false or at best utterly unreliable. People will say anything to avoid/end the torture. Thus a utilitarian calculation leads to the conclusion that the very uncertain (and likely non-existent) gain from having a rule permitting legal torture in extreme cases is outweighed by the high probability of the rule being frequently abused, not to mention the “moral” reinforcement it would give to the numerous regimes which routinely use torture now in much more sinister circumstances. Any possibility of the democratic West applying pressure to them to end their dreadful practices would be right out the window. You’ve so far made no attempt to grapple with this point, and it’s central to the whole issue IMO.

Rob
Rob
2021 years ago

Yes, Mark, I would say such a person should act in accordance with what their conscience dictated,* whatever* the legislative framework, and face the consequences – in the court of public opinion (*not* merely that of the media, which isn’t the same thing at all) and, if necessary, the law.