Philosophical Ethics: Can We Uphold A Moral Law And A Principle That We Should Break It?

Philosophical Ethics: Can We Uphold A Moral Law And A Principle That We Should Break It? October 19, 2009

In a series of posts this semester, I am going to blog all (or almost all) the lecture topics for the two Philosophical Ethics classes I am teaching this semester. Each of these posts will primarily explicate the reading or a theme that dominated class discussion in a way that should be accessible to novices (such as my students are). I will also offer some degree of analysis of the ideas considered and then pose suggested discussion questions. These posts will usually feature more speculation than argumentation from me as I try to stimulate your thinking rather than stake out my own positions. Some of my students will be responding to these short discussion primers in a private forum through the university. I’ve told the students they are free to discuss the blog post versions of these discussion primers as well, so they might show up here. The text we are using and from which all citations will be taken is Ethical Theory: classical and contemporary readings, edited by Louis Pojman. Wadsworth: California, 2007). This post explores the challenges of having an absolutist position on the subject of torture.

Torture opponents quite understandably are inclined to talk in unequivocal terms of the necessity that torture never be employed under any circumstances whatsoever. Yet many of these morally absolutist opponents of torture nonetheless grant that in the most extreme and dire circumstances imaginable, torture would be an acceptable last resort if it could demonstrably be expected to save a significant number of lives and it was our only hope to do so. This is understandable. It makes sense that one can oppose torture (1) as generally ineffective or even counter-productive for gaining good intelligence, (2) as an intrinsically evil violation of human rights, (3) as something that if routinized makes a country automatically a human rights abuser, (4) as something so evil that it is not worth resorting to for the sake of saving a few lives any more than the merely hypothetical chance that illegal searches and seizures could save some lives and catch some criminals justifies the police state tactics by law enforcement, (5) as something which increases the risk of retaliatory torture at the hands of one’s own enemies and therefore even has a prisoner’s dilemma reasoning against it, and, finally (6) as something which if normalized as even hypothetically permissible can quickly be expected to become a slippery slip leading to its morally repugnant abuse for political purposes and/or dangerous state power.

For all of these reasons, anti-torture absolutists do not want to even entertain either the possible morality or the possible legality (or both) of torture even in the most extreme circumstances in which torture just might work and just might be our only last resort to save not just a few people but, say, a city or, say, a whole country even if nuclear weapons were going to be deployed which could wreak devestation in the thousands, hundreds of thousands, millions, hundreds of millions, or, even billions.  In these absolute nightmare “ticking time bomb” scenarios, even the otherwise staunchest opponents of torture will admit the torture would have to be done.  Which is understandable.  What is more problematic is the insistence some of them make that torture is in these circumstances still morally and/or legally impermissible.  I’m next going to extensively quote   some examples of this sort of line of reasoning, you may feel free to skim a bit if you just want to get to my own treatment of the topic.  I just want to include their remarks at length to give their viewpoint a full presentation before countering it and as part of the document which does counter it:

Matt Damon appeals to a former-CIA agent to make the case:

Matt Damon isn’t against torture. He’s just against “codifying” it, which I think means making it legal.

”Look, the best line about torture I’ve heard came from [retired CIA officer turned war-on-terrorism critic] Milt Beardon,” Damon says in the Miami Herald.

“He said, ‘If a guy knows where a dirty bomb is hidden that’s going to go off in a Marriott, put me in a room with him and I’ll find out. But don’t codify that. Just let me break the law.’ ”

He goes on…

“Which I think is right. You can’t legalize torture. But anybody would do it in that situation. You’d do it to me in that situation; you’d pull out my fingernails if you thought I knew something like that.”

Slavoj Zizek writes the following of torture:

The realistic counterargument goes: The war on terrorism is dirty, one is put in situations where the lives of thousands may depend on information we can get from our prisoners, and one must take extreme steps. As Alan Dershowitz of Harvard Law School puts it: “I’m not in favor of torture, but if you’re going to have it, it should damn well have court approval.” Well, if this is “honesty,” I think I’ll stick with hypocrisy.

Yes, most of us can imagine a singular situation in which we might resort to torture — to save a loved one from immediate, unspeakable harm perhaps. I can. In such a case, however, it is crucial that I do not elevate this desperate choice into a universal principle. In the unavoidable brutal urgency of the moment, I should simply do it. But it cannot become an acceptable standard; I must retain the proper sense of the horror of what I did. And when torture becomes just another in the list of counterterrorism techniques, all sense of horror is lost.

In a way, those who refuse to advocate torture outright but still accept it as a legitimate topic of debate are more dangerous than those who explicitly endorse it. Morality is never just a matter of individual conscience. It thrives only if it is sustained by what Hegel called “objective spirit,” the set of unwritten rules that form the background of every individual’s activity, telling us what is acceptable and what is unacceptable.

For example, a clear sign of progress in Western society is that one does not need to argue against rape: it is “dogmatically” clear to everyone that rape is wrong. If someone were to advocate the legitimacy of rape, he would appear so ridiculous as to disqualify himself from any further consideration. And the same should hold for torture.

Are we aware what lies at the end of the road opened up by the normalization of torture? A significant detail of Mr. Mohammed’s confession gives a hint. It was reported that the interrogators submitted to waterboarding and were able to endure it for less than 15 seconds on average before being ready to confess anything and everything. Mr. Mohammed, however, gained their grudging admiration by enduring it for two and a half minutes.

Are we aware that the last time such things were part of public discourse was back in the late Middle Ages, when torture was still a public spectacle, an honorable way to test a captured enemy who might gain the admiration of the crowd if he bore the pain with dignity? Do we really want to return to this kind of primitive warrior ethics?

This is why, in the end, the greatest victims of torture-as-usual are the rest of us, the informed public. A precious part of our collective identity has been irretrievably lost. We are in the middle of a process of moral corruption: those in power are literally trying to break a part of our ethical backbone, to dampen and undo what is arguably our civilization’s greatest achievement, the growth of our spontaneous moral sensitivity.

Andrew Sullivan (with my emphasis):

Look: in the one in ten million, never-happened-in-human-history, infinitesimal chance that we really do have a ticking nuclear bomb and we also know – not just suspect – but know that a detainee knows where it is, no president would not endorse torture as an extraordinary extra-legal emergency measure. Under those circumstances, he and those deputed to do it would also, however, subsequently subject themselves to the criminal process as war-criminals, and if it were retroactively seen as the correct judgment, their sentence might be commuted. Or not. I’ve endorsed this position as well. But what Reynolds and Maguire and others support is the permanent routine use of torture, legally protected, and a cadre of professional CIA torturers trained to do it on a regular basis.

They support any techniques that the president chooses, (that was in the law passed last year). That was the position of all the other candidates bar Paul and McCain. It is light years away from McCain’s position, from George Washington’s position and from the position of every other president in American history. What Bush supports is the legal use of torture whenever “military necessity” requires it, a fantastically broad term which has transformed the morals and moral climate in the US military so that up to a third of soldiers approve its use just in routine interrogation of mere terror suspects in the field. Thousands of guilty – but mainly innocent – people have been tortured by the U.S. these past few years, and scores have been tortured to death. (Yes, 80 percent of those abused and tortured in Abu Ghraib under Rumsfeld’s directives were innocent. According to the Pentagon.) Sorry, Tom. I’m glad you’re discovering a conscience. But this flim-flam won’t do. The extreme, one in ten million exception, that remains extra-legal, is light years from the routine, legal torture of mere terror suspects that you support and that this president has enforced, and that has helped us lose this war you claim to want to win.

Chris Bodenner:

I think the TTB scenario can be ethicallyjustified, not legally justified. Torture should always be illegal, without exception. But in the infinitesimally small chance that someone is put in the situation where he or she is utterly convinced a captured terrorist holds the key to preventing the deaths of countless people, torturing one person would be the lesser of two evils.

Nevertheless, the onus should always be on a person who decides whether or not to cross the bright legal line of torture. He or she should be ready to accept full responsibility for the outcome, whether it be imprisonment or even death. But that risk is not new or unique; military servicemembers for ages have suffered far worse fates on the battlefield. Both scenarios – a TTB, a war – are just different ways to sacrifice for one’s country.

So let’s say an American did decide to torture a terrorist in defiance of the law, and that torture ended up preventing mass murder. No jury would ever punish that person. And even if an absolutist judge did convict, any US president would readily use an executive pardon, fearing no risk of public backlash. On the other hand, if the TTB threat turned out to be false, the torturer, even if acting in good faith, should still face the full brunt of the law. Again, the onus is always on the individual; he or she has to be utterly convinced the threat is real and be willing to face the punishment if mistaken.

So essentially my difference with Krauthammer is that he uses the ethical case for the TTB scenario to justify its legalization; he makes the rare exception the rule. (And with legalization comes bureaucratization, the evils and dangers of which Andrew has exhaustively chronicled on this blog, persuading me at every turn.) But as centuries of civil disobedience have shown us, what is legal is not always ethical, and what is ethical is not always legal. One can be ethically for torture – in the rarest and gravest of circumstances – but still oppose it legally. In fact, I think an ethical case for the TTB scenario actually strengthens the case against Krauthammer and Cheney, because even though torture is illegal, there will always be an American willing to risk death or imprisonment to prevent a major terrorist strike.

The problem that I have with this distinction between the moral and the legal is that the legal cannot be just if it requires punishment of actions which are not only morally permissible but morally necessary. And each Sullivan, Zizek, Boedner, and Damon’s ex-CIA agent clearly concede that in the hypothetical case in which torture could be known to be the one necessary action to undertake in order to save a great many people (however million miles removed from the actual, far less desperately justified torture practices employed by the US this decade this hypothetical is and however little it justifies actions undertaken by the Bush administration) it would be the right thing to do to in this “infinitesimally improbable” scenario to torture.

When each of these torture opponents concedes that this is the ideal course of action for the agent in this exact situation, then they are saying it is moral insofar as it is indeed universalizable for any people who wind up in that exceedingly rare/possibly-never-before-happened-in-human-history scenario.  They are evaluating this course of action in general terms, weighing all the relevant factors and saying that given this full set of circumstances, it would be the thing to do.  Each of them reasons like a rule-utilitarian who thinks that we should have moral rules for the role that they play in society, not for their own sake.  They each recognize that morality can bend even as essential a rule as the one against torture and yet each insists that the rule should be upheld as though it was absolute because of the horrendous consequences of the slippery slope which they fear.

But it’s not clear to me that we should agree with Zizek that hypocrisy is preferable to honesty since I am not convinced that facing the truth that the most extreme circumstances and only the most extreme circumstances would justify the most extreme recourses.  I do not see how that would make us feel less repugnance towards torture.  If we begin to see it as a morally indifferent tool worth routinizing as the Bush administration did, then indeed we have lost sight of every principle of human rights, civil liberty, and dignity that our Bill of Rights and the Geneva Conventions were written to enshrine in our laws and hearts.   But it seems facile to me to say that the only way to prevent this abuse of awareness of exceptions is to employ noble lies about absolute moral imperatives so that people will not slip into barbarism at the first countenance of a truth about the moral ambiguity that desperate circumstances create.

Similarly, it seems to me a disingenuous way to pretend that we can keep our laws perfect to say that we can morally demand someone to violate them and then go ahead and punish them for the sake of our laws.  If our laws are punishing the just, they are not perfect.  On the other hand if our laws are meant to be broken in a circumstance which is specifiable in advance with the understanding that the lawbreakers to be pardoned as a matter of moral necessity, then the pretense to having a law which forbids the action outright is mere pretense.

In short, if we accept that under the ticking time bomb scenario those charged with the security of innocents really should resort to otherwise unconscionable tactics which are provably necessary then we are saying that what they would do in that scenario would be morally necessary.  And whatever is morally necessary must be legal if the law is to be fair in the way that an absolutist presumably wants.  Again, even if it is only under the ticking time bomb scenario and even if the possibility of such a scenario happening and justifying an instance of torture is only 1 in a million, we have to concede the action’s hypothetical morality for that scenario.

But will this coarsen us to torture?  Will it make us see it as morally indifferent and convince us to accept it when our government officials routinize it?  I suggest the opposite is true.  If those who accept that torture would be necessary in the absolutely dire circumstance admit so freely, they take away the absolutist choice that lands the many who think torture is permissible in the most extreme cases in the routinized torture case.  The point is this:  if the average mind is given an either/or choice of routinized torture or no torture even if it means a nuke gets detonated in a city, then the average mind will side with the routinized torturing.  Because the evils of routinized torture will not outweigh in their minds the loss of a city of their country to a nuclear weapon.  If the opponents of torture shed their insistence on pretending that morality and legality can be so absolute and black and white as to allow no flexibility whatsoever, maybe they can promote a reasonable alternative ethical outlook that acknowledges the intuitively clear need to torture if it will save millions (even if not to save just a handful of people) while respecting that it cannot be a routinized practice or something to be trivialized and, say, compared to simple hazing as Rush Limbaugh has inhumanly done.  This sounds like the more mature way to handle a deadly serious moral quandary.  Not respecting people’s just fears and moral concern to save thousands or millions of lives even at the cost of some dirty hands is not the way to civilize them, but the way to deliver them to the barbarians with a bow.

I may have too much confidence in the value of truth, but I feel convinced that even when it’s harder, the truthful approach is always in the long run wiser than a compromised approach—especially where morality is at stake since morality requires complete credibility to elicit people’s obedience.  Lying for morality is a recipe for a backfire.

Finally, facing up to the realities of these hypothetical situations, as long as you stress the high standards which must be met in order to justifiably torture, would not at all necessarily mean that we would lose our sense that we are still doing something disturbing.  It is possible that we call something the moral, universalizable action in a situation and simultaneously say that it is something that should cause a just person anguished feelings.  Whenever one must sacrifice intrinsic goods for the sake of an overriding moral imperative, the rightness of one’s action should not obliterate all proper sorrow at the sacrifice of an intrinsic good.

That’s a sketch of my thoughts.  There are still some problems I can see remain.

Your Thoughts?

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