Torture Debate Part. 1

In the immediate aftermath of the terrorist attacks on 9/11, President George W. Bush assigned the CIA's Counter-Terrorism Center with an expanded mission: to detain and interrogate individuals suspected of terrorism as part of the Global War on Terror. It was a crucial assignment, but the fact that the CIA had no prior institutional experience in detention and interrogations, at least not independently, should have served as the first warning sign. Nonetheless, under the leadership of Chief Operating Officer Jose A. Rodriguez Jr., the CIA's Counter Terrorism Center would take on this task, fueled by new funding, personnel, and support from higher-ups in the chain of command. However, this program would soon become enveloped in controversy.

The heart of the issue with the CIA's Detention and Interrogation program lay in the use of Enhanced Interrogation Techniques (EITs). A significant portion of the public debate on torture would revolve around the technical categorization of EITs as torture. The supporters of EITs argue that EITs do not constitute torture. As such, EITs are legal and morally justified. I will revisit this issue shortly. For now, understand that EITs opened the debate on the use of torture as a form of policy in the United States.

What made the following torture debate in the United States after the revelations of the CIA’s use of EITs exceptional was its public nature. While there had always been an established prohibition on torture, both domestically and internationally, instances of torture still occurred at the governmental level. Law enforcement officers, the military, and even intelligence agencies had resorted to torture, although such cases were considered violations, both morally and legally. Torture was akin to murder - a practice that was prohibited but persisted. However, the CIA's use of EITs represented a fundamental departure from this norm; it was officially sanctioned and institutionalized. This created an atmosphere that encouraged experts and thinkers from diverse fields - public policy experts, political pundits, academics, and others - to challenge the once established prohibition against torture openly and earnestly.

The advocates of torture are working against the established prohibition on torture. Torture is, and continues to be, illegal under US domestic law and international law through treaties such as the Geneva Conventions and the UN Convention against Torture. The prohibitions laid out in the Geneva Conventions, the UN Convention against torture, and the Human Rights Framework in general, explicitly forbid the use of torture under any circumstances. Legally speaking, the proponents of torture has no real basis for arguing an exception to the international treaties and even US domestic law that prohibits torture. But laws can be changed, and commitments to international treaties can be rescinded, as long as there is sufficient political will to do so. The debate on torture focuses more on the morality of torture than its legality. Even the legal part of the debate is really about morality.

Before we go further, I want to be upfront and clear about where I stand on this issue.

I am unequivocally against torture under any circumstances, a position often labeled as "absolutist." Nevertheless, I believe it is essential to comprehend the contours of the debate itself—the major arguments, ideas, and core beliefs that lead people to their respective positions. I do not seek to change anyone's mind on torture, but rather to help explore this once-polarizing, and perhaps still polarizing, subject: the Torture Debate.

Torture is a complicated subject, and historically there have been many uses of torture. Torture is commonly understood as having 4 different types:

• punitive,

• confessional,

• terroristic,

• interrogational.

However, this debate solely focuses on interrogational torture, which is employed to extract information. It's worth mentioning that historically, other forms of torture were more prevalent, but the debate on torture only considers interrogational torture. No one, with very few exceptions, questions the immorality and prohibitions on punitive, confessional, and terroristic torture. So, from hereon, whenever I refer to torture, it only means interrogational torture and nothing else.

As I mentioned earlier, a significant portion of the debate is spent on arguing about whether EITs constitute torture. This is a claim made by supporters of torture as well as those who actually used them. Notably, Jose Rodriguez, the former COO of CIA’s CTC, is an ardent defender of EITs as they were used under his leadership.

Rodriguez is quite unique among proponents of torture in that unlike others, he was the person in charge of the CTC when EITs were implemented. He has direct knowledge of the use of torture, and continues to defend the use of torture on 3 key aspects: EITs are safe, legal, and effective.

His defense of torture is laid out in his book “Hard Measures”. It was his attempt to provide a clearer picture of what happened, and clean up some of the misconceptions revolving around EITs. But there are some confusing parts to his argument.

Rodriguez challenges critics to fully consider the consequences of prohibiting these controversial techniques. He argues that opponents of EITs must acknowledge that their stance carries the risk of potential harm to innocent lives. Rodriguez asserts,

"But if people want to take that stance, they need to fully consider the implications. They must articulate that not only do they oppose their government engaging in these practices, but they are also willing to accept that hundreds, thousands, or even more innocent people might die at the hands of terrorists because their government was directed not to use these controversial techniques, regardless of the potential results."

Rodriguez claims EITs are safe, legal, and effective. Although, he does implicitly acknowledge their extraordinary nature. Even the title of his book, “Hard Measures”, is suggestive of the extra nature of EITs. So, to save many lives, harsh, coercive, tough, hard measures are justified. So why doesn’t this justification apply to torture as well as EITs? There is no real explanation of why Rodriguez’s justification of EITs do not extend to torture. There is no qualitative difference between EITs and torture other than intensity. EITs, taken far enough, would qualify as torture even for Rodriguez. Which might explain this admission:

“Long before the interrogation techniques became known and the subject of public and media debate, we elected to stop using some of them. Despite the fact that we had been given legal authorization, we simply weren’t comfortable with their use and never again employed them.”

That CIA officers refused to implement EITs that were legal, safe, and effective, is confusing, given that hundreds, if not thousands of lives are at stake.

The question I have for Rodriguez is different from what I imagine many of his critics have asked: why not just use torture?

Sure, they may not be safe nor legal, but if hundreds, if not thousands of innocent lives are at stake, why should safety and legality matter at this point? Laws can be changed. Safety would matter only insofar as to keep suspects from dying, or otherwise become incapable of providing information. If we accept Rodriguez’s distinction between EITs and torture, torture is just an extreme version of EITs, in that EITs implemented with enough intensity would qualify as torture even for Rodriguez. If EITs are effective, then surely more intense versions of EITs would be even more effective.

Nothing in his argument precludes the use of torture. There is no reason why he shouldn’t use torture based on his own justifications.

I don’t want to spend more time on this, as we are interested in the actual question: “can torture be justified?” The debate on EITs, whether they constitute torture, is not the most important question here.

So, if thousands of lives are at stake, would using torture, be morally justified?

That is a question posed by the most frequently used hypothetical case in the entire debate on torture: the ticking time bomb.

Ticking Time Bomb

Over 200 years ago, Jeremy Bentham, a political philosopher, introduced the first modern concept of the ticking time bomb scenario. Similar to the Trolley problem, this thought experiment was designed to present a moral dilemma. Since Bentham's proposal, numerous variations of the ticking time bomb scenario have emerged, but they all share certain fundamental characteristics: a ticking time bomb is planted somewhere, threatening to explode and cause significant casualties. The terrorists responsible for the bomb possess the crucial information to prevent the catastrophe. The dilemma is this: should one resort to torturing the terrorists to extract the information and save innocent lives?

Don’t try to answer this question just yet.

It's important to consider why Jeremy Bentham formulated this hypothetical. Bentham was writing about the moral justifications of torture, and the ticking time bomb scenario was postulated specifically to challenge moral absolutists on the issue of torture. Its purpose was to justify the use of torture, and this intentional design raises questions about whether it should be regarded as an innocuous thought experiment inducing a moral dilemma. The subtext of the ticking time bomb scenario is that there is no real dilemma at all, but rather a predetermined justification for the use of torture.

It presents the reader with only two choices: torture and save many lives, or refrain from torture and allow the bomb to explode.

However, it is not uncommon to see variations of the ticking time bomb scenario. The original scenario envisioned by Jeremy Bentham was deliberately designed to encourage, or force, the reader to adopt the consequentialist mindset regarding the moral justification of torture. The ticking time bomb can be modified to steer people to different moral intuitions, as Allhoff calls them. Even you can make your own variation, depending on what moral intuition you are trying to invoke in others.

Let's go over several variations of the ticking time bomb.

The Standard Variation

The standard scenario is very simple.

• There is a bomb or a threat that will kill many innocent people.

• The terrorist has the lifesaving information.

• Torture is the only method to get the lifesaving information.

Conclusion: Torture is justified to save many lives.

The Purely Consequentialist Variation

The purely consequentialist variant is one that I made with one goal in mind: taking the consequentialist logic of balancing benefits and harms to its extremes.

In this scenario, there is no terrorist, only an innocent person who, by unfortunate circumstances, possess the knowledge of the bomb that will kill 2 innocent people. Only through torture will the innocent remember the information.

The purely consequentialist logic does not differentiate guilt and innocence, at least not outside the calculus of the benefits and harms. The same consequentialist logic is still at play in this variant and the original ticking time bomb, torturing 1 innocent person to save 2 innocents is still worth it.

If you think this is extreme, lets look at one of the variants proposed by Fritz Allhoff, a proponent of torture.

The Allhoff Variant

This variant is from Allhoff’s book.

• The bomb will kill many people.

• The terrorist has information but is resistant to torture.

• The terrorist has a soft spot for his innocent daughter: innocent means she had no knowledge nor culpability in planting the bomb.

• Torturing the innocent daughter is the only method to get the lifesaving information from the terrorist.

Allhoff claims it is justified to torture the daughter.

The Juratowitch Variant

Opponents of torture create variants of their own to point out the absurdity of consequentialist logic of the ticking time bomb. Ben Juratowitch, an absolutist, made this variant.

• There is a bomb.

• The terrorist has the information but is resistant to torture.

• The terrorist has a soft spot for babies.

• Torturing an innocent baby is the only method to get lifesaving information from the terrorist.

Juratowitch actually has a second variant of this, which included torturing an entire maternity ward of multiple babies to save the city. The consequentialist has no real argument to make against not torturing the babies. What difference does it make, if the innocent is a daughter of the terrorist or a newborn infant? If enough lives are at stake, say 100,000, then would it be unjustified from the consequentialist perspective to torture about 10 babies? The overall balance of benefits and harms matters the most.

“Remember, that people need to fully consider the implications. They must articulate that not only do they oppose their government engaging in these practices, but they are also willing to accept that hundreds, thousands, or even more innocent people might die at the hands of terrorists because their government was directed not to use these controversial techniques, regardless of the potential results.” - Jose Rodriguez

If you accepted the validity of the original ticking time bomb, the burden of explaining why you would oppose torturing babies to save thousands of lives is on you.

By now, if you are wondering, “hey this variants are empirically irrelevant - these scenarios are never going to happen” then congratulations you are starting to understand what many opponents of torture who critique the original ticking time bomb based on its empirical relevance.

If you are also wondering, “hey, this is unfair - these variants were made to undermine the consequentialist logic by reductio ad absurdum [extending the logic of an argument to its absurd conclusions], even though Allhoff is a proponent of torture.” then congratulations, you are starting to understand why David Luban called the ticking time bomb an intellectual fraud.

Now let me present my variant.

The Badly Presented Variant

This is mine.

• The bomb will kill everyone.

• The only way to stop the bomb is to kill all of a specific ethnic group, say about 6 million.

• The genocide of 6 million people of a specific ethnic group is the only way to prevent the end of humanity.

The point of this variant, is to question why would you assume that the ticking time bomb would only be about justifying torture. Objections to absolute prohibitions on torture is based on the premise that moral absolutism is untenable in general. It sounds reasonable. And yet, we have absolute prohibitions on a lot of things such as genocide, slavery, sexual violence, etc. I would like to see the people who oppose absolute prohibition on torture, levy the same challenge to genocide, slavery, and sexual violence.