Torture and the Ticking Time Bomb in the Era of Global Terror (February 2018): Different Positions on the Moral Status of Torture

Many have sought to understand whether torture can ever be considered a moral act. Those who believe that torture can sometimes be justified are consequentialists, for whom the morality of an action is assessed by its consequences. Many consequentialists use the TTB to explain their position. For example, in Terrorism, Ticking Time-Bombs, and Torture: A Philosophical Analysis, Fritz Allhoff argues that if interrogational torture is able to prevent a terrorist threat, it is justifiable. Torture is wrong, but it is the lesser of two wrongs in the TTB. In the TTB, Allhoff articulates a utilitarian position that saving many lives outweighs harming one.

One of the most well-known proponents of this position is lawyer Alan Dershowitz. In Why Terrorism Works: Understanding the Threat, Responding to the Challenge, he argues that because terrorism is a particular kind of threat, it requires a particular kind of response. He believes that torture can be effective, and that there are circumstances, like the TTB, when it should be utilized. So that torture does not become a widespread, unregulated practice, Dershowitz proposes the use of torture warrants, by which interrogators would first have to demonstrate its necessity to a judge. Mirko Bagaric and Julie Clarke make a similar argument in Torture: When the Unthinkable Is Morally Permissible, claiming that an absolute ban on torture is unrealistic because there can be no absolutes. Instead, a utilitarian perspective must be employed to deliberate the use of torture that considers the number of lives at risk, how soon the harm to those lives will take place, and if other avenues for acquiring information are realistic.

In On the Ethics of Torture, Uwe Steinhoff claims that if there are circumstances in which killing can be justified (such as war, self-defense, etc.), then there must be conditions in which torture can be defensible. He does not see how one can argue that “breaking” someone through torture can be worse than death. Steinhoff is not a consequentialist; he is a threshold deontologist. Rules apply, but only to a point; at that point, consequentialism sets in. The question becomes, what is the threshold? Since his formulation rests on self-defense, it avoids the potential of inadvertently torturing innocent bystanders. Situations other than the TTB, such as kidnapping, may warrant torture, but torture’s use on “fishing expeditions” to potentially find terrorist networks is unjustified.

Similarly, in The Lesser Evil: Political Ethics in an Age of Terror, Michael Ignatieff seeks to find middle ground—a “lesser evil”—between deontologists and consequentialists. The “greater evil” is the potential destruction of human existence that terrorists could usher in with certain weapons of mass destruction. Ignatieff is against torture as he believes that it could actually lead to the greater evil because of the frustration and response it would elicit from the tortured side. Ignatieff’s lesser evil, then, is to find techniques that put pressure on people being interrogated but stop short of full degradation.

Those who oppose torture under all circumstances are absolutists. For absolutists, torture is wrong, no matter what the consequences. Anti-torture deontologists consider there to be no situation, including the TTB, which can justify the use of torture. Deontologists, unlike consequentialists, are concerned with rules and principles, not consequences or outcomes. Charles Fried and Gregory Fried explain this position well in Because It Is Wrong: Torture, Privacy and Presidential Power in the Age of Terror. Fried and Fried argue that many people will say that torture is always wrong but then consider circumstances in which it is not. They contend that even in the most extreme cases, one must never resort to torture. As an act, torture violates the notion that human lives have intrinsic worth, a sentiment expressed more robustly in Jean Améry’s At the Mind’s Limits: Contemplation by a Survivor on Auschwitz and Its Realities and Elaine Scarry’s The Body in Pain: The Making and Unmaking of the World.

Bob Brecher expresses similar sentiments in Torture and the Ticking Bomb. He is highly critical of the TTB, arguing that if such a situation were to arise, it would be too late to get valuable information. To Brecher, torture produces low-level intelligence. He contends that justifying torture in the TTB will lead to rationalizing it in other situations as well—the slippery slope argument. Brecher disagrees with Dershowtiz’s torture warrants, arguing that legalization would result in normalization of the practice, and, if the US legalized it, other nations would follow suit. In Torture and the War on Terror, Tvetan Todorov similarly contends that the TTB is improbable and that terrorizing terrorists through torture contributes to the destruction of humanity.

In Mainstreaming Torture: Ethical Approaches in the Post-9/11 United States, Rebecca Gordon presents an anti-torture argument that is not absolutist. Gordon maintains that analyzing torture as a practice rather than a series of acts reveals the complexity of institutionalized state torture. She relies on Alasdair MacIntyre’s conceptualization of virtue ethics from his important text After Virtue, wherein morality is assessed over the course of a lifetime, not in individual acts. A practice is more than just one action (in this case, torture); it is embedded in the moral fabric of the society in which it takes place, or its traditions. Since practices are entrenched within institutions, if torture occurs in the US, it must be a part of American institutional systems.

In Sacred Violence: Torture, Terror, and Sovereignty, Paul Kahn feels that torture represents the antithesis of the rule of law, and power without law is tyranny. But, because the criminal justice system is flawed—largely because of its emphasis on procedure—it is insufficient in the face of terror. Thus, there is still a place for state violence, including torture, particularly when confronting terror. Kahn is highly skeptical of the TTB. However, he asks readers to consider how the international ban on torture was meant to protect individual citizens from powerful states.

A few notable edited volumes capture arguments on both sides of the debate. Torture: A Collection, edited by Sanford Levinson, considers the various moral positions politicians or the state can and should take in regard to torture and protecting the polity. Another important volume is The Torture Debate in America, edited by Karen J. Greenberg, which addresses how torture is not necessarily a bipartisan issue. For example, liberals may justify torture in the TTB because it is not explained as unwarranted cruelty against an individual. Confronting Terror: 9/11 and the Future of American National Security, edited by Dean Reuter and former Deputy Assistant Attorney General John Yoo, contains a number of essays that support the response of the Bush administration to the events of 9/11.

Other worthy volumes that explore these topics in depth are Torture: Moral Absolutes and Ambiguities, edited by Bev Clucas, Gerry Johnstone, and Tony Ward; How 9/11 Changed Our Ways of War, edited by James Burk; and The Phenomenon of Torture: Readings and Commentary, edited by William Schulz. Schulz includes testimonies by people who have been tortured. Finally, Lisa Hajjar’s Torture: A Sociology of Violence and Human Rights, geared toward undergraduates, is an excellent introduction to the many facets of the torture debate.