... In a bizarrely long thread at Crooked Timber, various worthies argued that Orin Kerr is, at best, an unwitting supporter of Bush-era legal abuses, and at worst, a hack. The thread was enlivened by Prof. Kerr's interventions, and lowered a bit by TBA's.
Anyway, so long as the original topic of surveillance law and civil procedure was adhered to, Prof. Kerr held his own; but when someone (not me!) changed the subject to whether Prof. Kerr opposed torture where it arguably might save lives, he came back with this question, which I guess I'd better quote in full:
I think torture is horrible, evil, terrible, bad, wrong, and awful.My analytical skills were fading by this point in the evening, so I came back with this:
I understand the next question to be (at bottom) about whether I am a utilitarian. Let’s be more specific about the hypo, and then turn to the answer. Assume we have a known terrorist mastermind who we know has information about a plan to capture and then torture to death Rich Pulasky, ScentofViolets, LizardBreath, and politicalfootball, together with their spouses and all of their children.
Let’s assume, just for the sake of argument, that if we waterboard the terrorist, we are pretty sure that we can learn about the plot and save Rich Pulasky, ScentofViolets, LizardBreath, and politicalfootball, together with their spouses and families, from, being caught and tortured to death. Also assume that when the terrorists torture a person to death, it is a particularly and astonishingly cruel form of torture. And assume, as Rich suggests, that waterboarding is legal.
So the question is, do we decide not to waterboard the terrorist? That is, do we let Rich, Scent, LizardBreath, and political football, together with their families, die an extraordinary horrible death at the hand of torturers? Or do we waterboard the known terrorist (which is lawful in our hypo) and save Rich, Scent LizardBreath, and politicalfootball, together with their spouses and children?
I say we waterboard, and I’m curious what Rich, Scent LizardBreath, and politicalfootbal would say we should do. (Seriously, I would be interested in your answers, if you’re still in the thread.)
Incidentally, some might try to fight the hypo, and say that it’s unrealistic, or that we wouldn’t know all these things. But that objection would bring to mind the old story attributed to Churchill and the socialite:
Churchill: “Madam, would you sleep with me for five million pounds?”
Socialite: “My goodness, Mr. Churchill… Well, I suppose… we would have to discuss terms, of course…”
Churchill: “Would you sleep with me for five pounds?”
Socialite: “Mr. Churchill, what kind of woman do you think I am?!”
Churchill: “Madam, we’ve already established that. Now we are haggling about the price.”
Prof. Kerr’s response to RP raises the issue of whether torture is wrong because it doesn’t work, or wrong because it’s Just Wrong.Which I think is okay, actually, but doesn't cut to the problems with Kerr's example (a version of the Ticking Bomb).
I think that if torture were a reliable method of obtaining information, we would have fewer qualms about it, and our discussions would center more upon whether we were torturing the right people, with no permanent ill effects, etc.
But common sense, plus centuries of experience, have taught us that torture is not reliable. Which is why the hypo, like the ticking-bomb example (which it basically amounts to), rests on a false premise: that torture will allow us to save people. And why the possibility of obtaining good intel by torture is sufficiently small that, combined with its repugnance, civilized nations have been comfortable with a ban on torture (even if the UK, Israel, and the U.S., for instance, have proved themselves willing to torture anyway).
That distinguishes torture from the Churchill anecdote (a fav of mine, tho this is the first time I’ve seen it attributed to WSC). Conceding that one would torture if torture worked differently than it does in real life is not conceding anything about torture in the real world; we are not haggling over price. It’s like saying I would cheat on my wife, if I were married to a woman who not only tolerates cheating but downright insists on it. That science-fiction scenario tells me nothing about whether it’s okay to cheat on my real wife.
(1) All that the example proves is that people will do bad things under duress or necessity.
(2) It therefore proves too much, which is where The Aristocrats comes in. To save the human race from painful destruction, would you fuck your mother up the ass while defecating into your daughter's mouth and fellating your father, who is crouching on your mother's back and defecating himself, etc., etc.? ... You would? Then incestuous coprophagia must not be wrong, then!
(3) That really should suffice, but here's the kicker. We turn to the Torture Act, 18 U.S.C. 2340(1)-(2):
(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;The Ticking-Bomb scenario, certainly in the grandiose version presented by Prof. Kerr, may itself violate the Torture Act. Threatening people with the imminent death of others to compel them to do things they wouldn't otherwise do, is one of the things torturers do.
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality ....
Now, whether waterboarding someone would cause "prolonged mental harm" is arguable, but there's good evidence that it does. Alistair Horne on French torture in Algeria:
one should also note France’s painful discovery that, fifty years on, many former “torturers” in the armed services were having to resort to psychiatric “counselling.” The inflicters of torture as well as their victims remain grievously impaired.Framing the issue of whether torture is morally permissible, in a scenario that itself amounts to an act of torture, strikes me as self-refuting somehow.