In his 2008 article in Ethics & International Affairs, Whitley Kaufman denies that torturing the ticking bomb terrorist can be justifiable; he argues in particular that it cannot be a form of self-defense.1 He relies on the distinction between an "Aggressor" and a "Culpable Bystander."2 The latter is "a person who has committed a wrongful act, but is not now committing a wrong" (p. 98). The former is now committing a wrong, or is posing an imminent threat. Kaufman thinks that the captured ticking bomb terrorist is only a Culpable Bystander and that defensive violence to avert pending unjust harm may only be directed against aggressors (p. 98).
Even if this line of reasoning were correct, it would be inapplicable to the child kidnapping case since, as Kaufman himself admits, a "kidnapper … is an aggressor simply by virtue of his holding you hostage" (p. 115, n. 71). Thus, torturing the kidnapper to make him reveal the location of the child would be a case of self-defensive torture ("self-defense" understood here, as is common, to comprise other-defense).
Moreover, Kaufman's criticism is not correct. Allow me to first quote the decisive passage at length.
But might it be argued that at least in some cases (the ticking bomb) the terrorist is not a mere bystander but a continuing aggressor, insofar as his act of violence has been set in motion but not yet completed, and he has the power to prevent it by revealing the location of the bomb? There are two ways of interpreting this argument. First, the claim might be that against a Culpable Aggressor, any sort of force is permissible so long as it helps prevent the harm that is being defended against. But this claim is patently false. The doctrine of self-defense permits only force of a certain kind: force that is defensive, that wards off or literally fends off the threatened harm. It has never been interpreted to permit using a person—even a Culpable Aggressor—as a means to escape harm—that is, to use instrumental force. Thus, Suzanne Uniacke rightly points out that one may not invoke self-defense to "forcibly use" an aggressor as a human shield against his co-conspirators. Characterizing the captured terrorist as a "continuing aggressor" is already a highly questionable assumption, given that he is in custody and incapable of causing any more harm....But even if he [the captured terrorist] were considered a "continuing aggressor," it would not follow that any force against him is permissible. There would have to be evidence that the force being used is genuinely defensive, and not instrumental force used as a means to a further goal.
The argument, therefore, would have to show that this sort of force—the use of torture to get the terrorist to reveal information—was genuinely defensive. But this would be equally implausible. The use of torture to achieve a further goal, however laudable that goal, is a classic example of instrumental rather than defensive force. It is force used as a means to prevent future harm, just like using an innocent bystander as a human shield. Indeed, torture is often seen as the paradigm case of force that violates the ethical imperative not to use people as a means to achieve one's goals....That torture is not defensive but instrumental force can also be seen in that it is in practice irrelevant who one tortures so long as one achieves one's goal; for example, one could try to get the terrorist to reveal the information by torturing his wife or child in front of him (pp.109-10).
Let me point out some of Kaufman's confusions:3
1. That the "doctrine of self-defense permits only force of a certain kind" does not imply that an argument intended to show that torturing the captured terrorist is permissible has to show that torturing him is a case of self-defense.
2. This is confirmed by Suzanne Uniacke's stance. Kaufman misrepresents what she is actually saying on the pages of Permissible Killing he is referring to. One finds her there denying that it is a genuine case of self-defense when in a situation where "I am exposed to a grenade about to go off which you have just triggered" and which "is no longer under your control...I push you on top of it in order to protect myself." However, she does not deny that it is a justified act.4 Besides, the ticking bomb of the captured terrorist still is under his control: he can see to its deactivation by just telling the police the location. Moreover, Uniacke does not say "that one may not invoke self-defense to ‘forcibly use' an aggressor as a human shield" against his co-conspirators. Instead she says: "Whereas if you have (say) informed gangsters of my whereabouts and they come looking to kill me, I am clearly not acting in self-defence against you if I forcibly use you as a shield against these gangsters bullets." Why not? Because the threat is not "a direct effect of your conduct," you might be a completely innocent person.5 The threat in the ticking bomb case, however, is a direct effect of the conduct of the ticking bomb terrorist.
3. Why is "[c]haracterizing the captured terrorist as a ‘continuing aggressor'...a highly questionable assumption, given that he is in custody and incapable of causing any more harm"? After all, Kaufman informed us that the "kidnapper...is an aggressor simply by virtue of his holding you hostage."6 However, the aggressor can still hold you hostage while "he is in custody," and the ticking bomb terrorist can still execute his murderous plan while he is in custody.
4. Kaufman assumes that "instrumental" force cannot be defensive. Yet, when a defender shoots an aggressor, he does this of course for instrumental reasons, namely as a means to save his own life.
5. But probably Kaufman means by instrumental force something else. Instrumental force is force that uses a person as a means to one's goals. However, using someone as a means to my goal of finding out what time it is by asking him for the time seems to be unobjectionable. But may I apply force to use someone as a means to my goals? Consider the thief who has stolen my medicine, which I need in the next minutes in order not to die, with the intent of killing me this way. I manage to catch the thief before he can escape, twist his arm, causing him pain, telling him to hand the medicine over. He does so in order to avoid further pain. Thus, he is my means to get the medicine back (he himself hands it over). I cannot imagine any U.S., British, or German court—or any reasonable person, for that matter—not considering this justified.
6. To claim that "force used as a means to prevent future harm" is "just like using an innocent bystander as a human shield" is bizarre. If innocent Jane is shot at by culpable Bill, then Jane's using force by returning fire is also a means "to prevent future harm," namely her future death or serious injury. There is also a very obvious difference between Jane shooting back at the culpable aggressor on the one hand and her grabbing her neighbor's baby as a shield on the other.
7. No less unwarranted is Kaufman's claim here: "That torture is not defensive but instrumental force can also be seen in that it is in practice irrelevant who one tortures so long as one achieves one's goal; for example, one could try to get the terrorist to reveal the information by torturing his wife or child in front of him." On this logic Jane's shooting Bill is not a case of self-defense, for she could have tried to save her life by shooting Bill's daughter, hoping that he will then immediately abort his attack on Jane and rush off to the hospital to save his daughter. Obviously, Kaufman's logic is flawed.
I suspect that underlying much of Kaufman's reasoning is a simplistic and mistaken view of negative duties. To be sure, one can discharge negative duties by never doing anything whatsoever, but once one starts to do something one might only be able to discharge one's negative duties by doing something. As Richard Louis Trammel notes:
Drivers must correct the movement of their cars, and waiters and waitresses must hold on to hot dishes passing over their customers. Thus the requirement of the commands not to kill or injure is not that the agent refrain from initiating any causal processes tending toward death or injury, but rather that the agent not initiate any such causal processes without continuing to intervene to counteract the tendencies he has previously initiated.7
Thus, for the ticking bomb terrorist and the child kidnapper, the positive action of revealing the location of the bomb or of the child, respectively, are obvious ways to discharge their negative duty not to unjustifiably kill or torture innocent people. If they do not discharge this duty voluntarily, they can be forced to discharge it in self-defense—by self-defensive torture, if need be.8
1 Whitley Kaufman, "Torture and the ‘Distributive Justice' Theory of Self-Defense: An Assessment," Ethics and International Affairs 22(1) (2008), pp. 93-115. All page numbers in brackets refer to this article.
2 He also distinguishes between a "Culpable Aggressor" and an "Innocent Aggressor." This distinction, however, is irrelevant for my argument here.
3 For a critique in particular of Kaufman's objections against what he calls the "distributive justice theory of self-defence" see Re'em Segev (2008), "Response to Whitley Kaufman: The Distributive Justice Theory of Self-Defense," Ethics & International Affairs (Online Exclusive) 22(1), www.carnegiecouncil.org/resources/journal/22_1/features/004.html.
4 Suzanne Uniacke, Permissible Killing: The Self-Defence Justification of Homicide (Cambridge: Cambridge University Press, 1996), p . 187.
5 Ibid., p. 187, n. 38 and the text this note refers to.
6 That the child kidnapper is a continuing aggressor is ignored by Seumas Miller in his criticism of my view that torture can be a form of self-defense. See Miller, "Torture," plato.stanford.edu/entries/torture/.
7 Richard Louis Trammel, "A Criterion for Determining Negativity and Positivity," Tulane Studies in Philosophy 33 (1985), pp. 75-81, at pp. 76-7.
8 For further arguments to this effect, see Uwe Steinhoff, "Torture—The Case for Dirty Harry and against Alan Dershowitz," Journal of Applied Philosophy, vol. 23(3) (2006), pp. 337-53, reprinted in David Rodin (ed.), War, Torture and Terrorism: Ethics and War in the 21st Century (Oxford: Blackwell, 2007), pp. 97-113; "Justifying Defensive Torture," in Bev Clucas, Gerry Johnstone, Tony Ward (eds.), Torture: Moral Absolutes and Ambiguities (Baden-Baden: Nomos, 2009), pp. 39-60; "Defusing the Ticking Social Bomb Argument: The Right to Self-Defensive Torture," Global Dialogue, vol. 12(1) (2010), www.worlddialogue.org/content.php?id=457; The Ethics of Torture, unpublished book manuscript.