I remember a conversation I had with a friend of mine a few years ago, regarding ticking-time-bomb-torture. We were discussing the legality, not the morality, but there's some crossover. My opinion was that torture should never be legal, but that if the situation really demanded it, someone in the right position should just do it anyway. If the situation were really so dire, shouldn't there be at least one person willing to risk the consequences to their own life? The idea to me was that the legal code should embody the principles that we stand by, but not literally define the bounds of our actions. That's one of the advantages of living in a lenient, humanisitic government: we leave room for the fallibility of the laws themselves.I don't see why your friend should think this was bizarre; it seems to me to be very common. Take, for instance, the law against stealing bread. Even if you are starving it is illegal for you to steal the bread. And yet, if your family was starving, and you had no other options, surely the moral thing to do would be to steal bread to feed them. And yet, you couldn't simply codify into law an exception that says you can steal bread if you are hungry: universally applied, you would essentially be legalizing bread riots, and would have no end of trouble in determining the legal definition of "starving". Of course the pragmatic thing is to keep the law as it is, with no exceptions, and to perhaps take other measures to prevent people from being in the position of having to steal bread in the first place (e.g., a food stamp program). THEN on top of this, as a final recourse, build into your technocratic legal system plenty of room for ad hoc leniency by adding such elements as a trial by jury or judicial discretion during sentencing (hiring nice cops wouldn't hurt, either).
Anyway, he thought that this was bizarre, to consciously build a set of rules into our government that would `enforce' the wrong thing in certain explicit circumstances.
I think what applies above applies to torture law, as well. The problem is that even if you only legalize torture in some explicit circumstances, there will inevitably be "torture creep", and you will start seeing torture in non-ticking-time-bomb cases, as well (and in fact, this is precisely what happened with the torture programs under the Bush administration). Better to keep the law as is and focus on the practical problem of making it so that we will never be in a ticking-time bomb scenario (many torture apologists would say that torture is justified in preventing the ticking-timb bomb scenario. But there's torture creep already!).
So, yeah: I think we're in agreement...
2 comments:
Hmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm.
I guess I think of myself as a legal absolutist. This is perhaps primarily because I don't ascribe much autonomy and/or independent thought to those in police/military positions.
The military trains soldiers to not think for themselves ever and instead to fallback to their training when considering the right thing to do in any situation. It trains them not to think and absolves them of the desire to think because they are not responsible for obeying ordered actions. I have a hard time imagining an infantryman making a moral imperative choice that goes against a superior's command. Also, the whole trial-by-jury argument doesn't apply to the military; they typically get court-martialed and judged by their higher-ups.
OTOH, maybe I don't ascribe enough enough independent thought to the officers. I wonder how far up the totem pole you need to be to legitimately question your superior's orders. Hollywood aside, I don't think it's really the lieutenants that are doing it.
It's hard -- we already have so many laws that are (designed to be?) ignored by people with confidence in their own judgement. Speed limits, jaywalking, alcohol & drugs. Certainly I and most other citizens adhere more to our own judgement than to the strict legal code for the laws that everyone else ignores.
I guess that, finally, I'd want torture to be exceptional. I'd want "justifiable torture" to be an analogue of "self-defense homicide." There should be a damn high burden of proof that you merit the exception, which has seemed to work for self-defense but it may turn out that torture is in a politically expedient blind spot. Finally, I'm worried if there isn't an extreme exception then torture will be thought of more as jaywalking than as homicide, and violating the torture laws fairly trivial and common.
This chasm between written law and morality is very well born out in your dialogue with Alex, but they represent two very different problems. There is some relationship between the two- with the law following from, though always extremely imperfectly, a certain moral code. But as the case of torture has shown us, the law suffers from a malleability that renders it all too often ineffective. One obvious example is John Yoo's torture memo which, in a few lines, circumvented years of laws against torture. This memo was a response to a particular situation which many Bush administration officials might have looked at and thought there is no "morally right" choice. Howver it seems that these are precisely the moments in which one realizes the impotence of the written law (it can be so easily thrown out anyway) and relies on a moral code. It is in these moments when one must reflect on what these older laws prohibiting torture responded to in the first place, why they were instated, what sense of morality did they appeal to. Have we suddenly stumbled on a problem that is sui generis such that now or morals can be overturned as easily as our written laws? This seems unlikely if we have already categorized that instance in which torture can be sanctioned as the "ticking time-bomb scenario," that is, if it already fits into some group of events that have supposedly preceded it. I say "supposedly" here because the "ticking time-bomb scenario" itself should be, and indeed has been, sufficiently deconstructed. In a 2007 New Yorker article about the television show 24, Jane Mayer discusses the relationship between this scenario and fiction (http://www.whale.to/b/24.html). In fact, the ticking time-bomb scenario first appears in a work of French fiction in 1960 as a means of justifying torture already being committed by French occupiers in Algeria. Actual historical cases of the ticking time-bomb are harder to come by, let alone cases in which torture produced some sort of "actionable intelligence." The reason for this latter case would seem simple enough: If my goal is to remotely kill a number of people and I know the precise moment when the bomb will go off or the virus unleashed or whatever, why wouldn't I just wait out my torture or give false information until the catastrophe comes? Certainly there would no longer be a reason to torture me after the bomb goes off. Unless of course the real reason we torture is not to somehow bring out of the victim's body some useful information they are harboring, but rather for something else.
I am in no way a moral absolutist and yet the issue of torture is one that, with each facile attempt of its justification by its apologists, seems increasingly clear to me. It is morally and ethically wrong and, what's worse, it does not work.
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