Torture Interrogation of Terrorists: A Theory of Exceptions

[banana republican]

http://www.usafa.af.mil/jscope/JSCOPE03/Casebeer03.html

Torture Interrogation of Terrorists: A Theory of Exceptions (With Notes, Cautions, and Warnings)



by Major (USAF) William D. Casebeer, Ph.D.

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Introduction



Since September 11, there has been a groundswell of support among the general population (and even among some professional ethicists) regarding the need to permit torture interrogation of terrorists and suspected terrorists in certain cases. The arguments in favor of torture interrogation are usually consequential; they rely on the horrific outcomes of failing to torture certain kinds of terrorists (such as those that possess information about the planned use of weapons of mass destruction) for their moral force. The arguments against torture interrogation are sometimes consequential, but most often deontological; they usually rely on some conception of inviolable human rights and the duties that correspond to those rights for their persuasiveness.

Conflicts between consequential and rights-based moral theories are not new. Here, I use insights from previous attempts to meld utilitarian and deontic moral approaches into a coherent system to formulate a “theory of exceptions” that tells us just when it is morally permissible to engage in torture interrogation; such a theory will provide us with principled exceptions to absolute rights.<1> It closely resembles Michael Walzer’s doctrine of “Supreme Emergency” in terms of structure and has four critical upshots. First, there are vanishingly few circumstances wherein torture interrogation of terrorists would actually be justified; while they exist in principle, meeting the requirements of the exceptions theory proves very hard to do in practice. Second, owing to the extraordinary prima facie pressure exerted by the basic human right not to be used as a mere means, most exceptions (while morally permissible) nonetheless leave those involved in the decision to torture with moral “dirty hands.” Third, owing to the epistemic difficulty of removing one’s self from the exigencies of the circumstance, exceptions require dramatic oversight, and such oversight might have to be international in nature to be effective. Finally, most consequential justifications for the permissibility of torture neglect to consider the institutional and character-based harm that we do to ourselves when we actually attempt to build a system for torture interrogation that the utilitarian would find praiseworthy. Perversely, consequential justifications for torture interrogation require well-trained torturers who know where and when to apply pain, but establishing the institutions required in order to sustain such well-honed practice is fraught with perils that the utilitarian would condemn, all things considered.

I conclude that torture interrogation is permissible in tightly constrained circumstances, and that we should not rule it out tout court; nevertheless, in practice it will be practically impossible to justify any particular decision to act on an exception to the prohibition of torture interrogation of terrorists. More, our decisions to act will require an oversight apparatus that is not presently in place and that may not be possible to create. Grappling with these issues may very well force us to articulate yet more clearly just what the common bond of humanity requires of us, morally speaking.



Preview



First, I’ll briefly motivate an examination of torture interrogation before discussing its definition and previewing my methodology. I then examine (at a high level of granularity) utilitarian, deontic and virtue theoretic aspects of the practice. I reconcile the viewpoints offered by the three major moral theories in a doctrine that parallels “supreme emergency.” After laying out torture techniques along a spectrum of objectionability, I conclude that while, in theory, the requirements can be met, meeting them in practice is very difficult, and that we should keep in mind sundry “notes, cautions, and warnings” before condoning torture interrogation in real world circumstances.

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