Torture, Rights, and Values: Why the Prohibition of Torture is Absolute
Carnegie-Uehiro Fellowship Program, Inaugural Lecture 2008
June 26, 2008
- Introduction by Joel Rosenthal, Carnegie Council
- Introduction by Noboru Maruyama, Uehiro Foundation
- Remarks by David Rodin
- Response by David Luban
- Questions and Answers
I'm Joel Rosenthal, President of the Carnegie Council, and it's my privilege to welcome you, especially our friends from Japan and from the United Kingdom, to this gathering.
Now, it is a rare privilege to introduce a "first annual" program, especially in an institution that is 94 years old. "First annual" is a statement of great expectation, suggesting that there will be many more years of success to follow. And so I say "first annual" with great confidence—and, yes, great expectations.
It is precisely opportunities like this fellowship program and this lecture that make this Council and its work so energizing and exciting. As an educational organization working in the public interest, we have an ever-present opportunity to renew our mission in new ways, building upon our historic strengths and achievements. We work in a spirit of adventure and creativity, knowing that our work is organic, growing, and always unfinished.
As you will hear from my colleague in just a moment, our founders would expect us to be ambitious and practical, to think big, and to achieve specific results. These are the animating ideas that bring us here today.
Of course, we realize the first, and most important, aspect of this work is that it is made possible by our predecessors. As the old proverb puts it, we stand on the shoulders of those who come before us. So with this in mind, I would like to thank publicly Mr. Tetsuji Uehiro, vice-president of the Uehiro Foundation, who has affirmed his family's deep commitment to ethics and education. Mr. Uehiro's encouragement and support and commitment to this project have been decisive in making it happen.
I have had the privilege of knowing his father, Mr. Eiji Uehiro, current chairman of the Foundation, and I have heard many stories about his grandfather, Mr. Tetsuhiko Uehiro. It is an honor to work in this family's tradition. Their work has brought honor to their family, to their country, and to the world, and it is a great example to us all.
The purpose of the Carnegie-Uehiro Fellowship is, simply: To promote the study and teaching of ethics in international affairs. Fellows are required to conduct their own research and to work with us in making their findings available to worldwide audiences.
The Fellowship is founded against a background of concern and the recognition of a great opportunity.
The concern is obvious: Who are the thought leaders in asking and answering the most important and challenging problems of ethics on issues of global scope and concern? Can we identify and encourage the very best scholars to generate new ideas, to improve debate in the academic and policy communities?
The great opportunity exists in giving voice to these scholars. Given the revolution in communications technology, we can now connect programs like this one this evening to audiences all around the world. The words spoken here this evening will be recorded in digital video and audio formats; print-friendly transcripts will be produced. People all over the world will watch, listen, or read what is said here. They will have access anytime, on demand, and they will have the ability to respond using interactive tools that are becoming familiar to all, especially younger audiences.
In the late 1940s and early 1950s, after World War II, when the idea of One World was in the air, there was the dream of creating a global television channel. Some of you may recall on early television sets, before remote control, the dial would begin with Channel 2 and proceed clockwise to Channel 12. As the story goes, Channel 1 was to be reserved for UN-TV, for global public affairs programming. This would be like C-SPAN for the world.
We still think this is a terrific idea, a great dream. Why not create a truly global network, a peace channel or an ethics network? In today's world of digital video, it is now increasingly possible, and this is the path that we are clearing.
So it is with this rather expansive idea in mind we begin. We begin knowing we cannot possibly complete the task of building a global resource and network, but this ambition only confirms its importance.
A project like this requires great talent, and, fortunately, we have that talent represented here by our speakers this evening. I will not give you long introductions, since printed biographies have been distributed.
Let me just say that David Rodin is one of Oxford's most distinguished ethicists, with broad interests in topics related to ethics in war and issues of international justice. His first book, War and Self-Defense, is a landmark study. A former Rhodes Scholar from New Zealand, his accomplishments inside the academy and out is a portrait of ethical leadership.
David Luban is one of America's most distinguished ethicists, currently the Frederick Haas Professor of Law and Philosophy at Georgetown University Law Center. He joined the Georgetown faculty in 1997, coming from the University of Maryland's Institute for Philosophy and Public Policy and its School of Law. He has written eloquently and persuasively about our topic this evening, the challenge of balancing public security with civil liberties and human rights.
I would also like to acknowledge the presence of Kei Hiruta, also an appointed Carnegie-Uehiro Fellow. Although he is not on the program this evening, you can find evidence of his recent work in the recent issue of the Council's journal Ethics and International Affairs, where he has written a review of essays on the work of Isaiah Berlin, with a special focus on the concept of pluralism as represented in Berlin's work. We look forward to working with Kei in the coming weeks and months in developing that theme.
Now, before we proceed with the lecture program, I would now like to give the floor to my colleague, Noboru Maruyama, Secretary-General of the Uehiro Foundation, for his greeting. I have had the opportunity to work with Noboru for many years. We have been partners as advocates for ethics, building a great ark of partnership from Tokyo to New York to Oxford, and we would like to do more. I cannot imagine a better partner. So thank you, Noboru, for all you have done and continue to do.
Introduction by Noboru MaruyamaNOBORU MARUYAMA: Thank you, Dr. Rosenthal, ladies and gentlemen.
On behalf of the Uehiro Foundation, Tokyo, Japan, I would like to say a few words before the commencement of this Uehiro Lecture.
It is a great pleasure for us to announce the commencement of the Carnegie-Uehiro Lecture. This lecture series will be given annually as a major duty of the Carnegie-Uehiro Fellows.
In 1914, Mr. Andrew Carnegie established the Carnegie Council for the quest of world peace through religious and ethical collaboration. In 1918, Mr. Eiji Uehiro set up the Uehiro Foundation for the advancement of research and education in ethics. Even if our Foundation has respected neutrality from any creeds or ethical values, we cannot deny the spiritual influence of Mr. Tetsuhiko Uehiro, the founder of the Practical Ethics Association, which is a major donor of our Foundation. I think the same thing can be said of the Carnegie Council.
You may wonder why Carnegie and Uehiro have worked together since 1990, with the annual Carnegie-Uehiro Conference on Ethics and Education, and why we are today celebrating a new beginning towards future cooperation between the two institutions on ethics.
It is my personal conviction that Mr. Andrew Carnegie and Mr. Tetsuhiko Uehiro shared the same sincere ethical attitude to their life as leaders of the times. Mr. Carnegie and Mr. Uehiro had very different social backgrounds. The former was a world-famous business leader and the latter was a social educator of postwar Japan. However, what Mr. Andrew Carnegie and Mr. Tetsuhiko Uehiro aspired for must have been the same: That is, world peace and the prosperity of human society through their deep concern with ethical issues.
Dr. Rosenthal is in a superior position to tell us how and why Mr. Carnegie set up the Council to fulfill his wishes. Here I would like to refer to Tetsuhiko Uehiro and his experience in the devastated city of Hiroshima on August 6, 1945.
Yes, Mr. Uehiro was a victim of the atomic bomb. He was forced to lie in bed for a while. He heard the conversation between the medical doctor and his parents, which was hinting at his coming death. He looked at the ceiling, without any hope for survival.
One day, something that changed his whole life unexpectedly visited him. He realized that his hair and nails were growing without either his own will or control. Then, he came to realize that cosmic power, or the power of Nature, was enabling him to live. With this awareness, he decided to use the rest of his life not for himself but for the welfare of society by his teaching of ethics.
Japan and her people have cultivated our own ethical wisdom and practice from ancient times. However, the Japanese hasty and unplanned quest for modernization from the beginning of the 20th century, based on militarism, spoiled it and damaged them in many ways.
Tetsuhiko decided to shed light on the positive side of the traditional Japanese ethical values and its practice. He set up meeting places where people could learn practical ethics through self-reflection and self-orientation.
Mr. Eiji Uehiro, the current Chairman of the Association, succeeded Tetsuhiko's original wish and educational methodologies. Mr. Eiji Uehiro has been taking the initiative in Japanese ethical education, with nearly 1,000 schools and over 4 million membership.
In the quest for peace, Tetsuhiko and Eiji never complained or criticized the United States or the Allied forces who dropped the atomic bombs over Hiroshima and Nagasaki. Instead, both of them suggested that members of the Association and the general public face the challenge of human psychology.
Mankind from ancient times until today has embraced so many kinds of emotions and feelings which are against what is ethical. This has led to ethical tragedies. Each person, in each society, in each era, is influenced by egoism, prejudice, hatred, anger, discrimination, jealousy, et cetera.
Of course, Tetsuhiko and Eiji did not believe that one could eliminate these unnatural mental difficulties completely. These could be used effectively if one could control them appropriately and use them as the driving force for activating one's life. And if one could face these emotions appropriately, mankind could decrease the cause of wars, even if they were impossible to abolish totally.
In the world today, there have been many wars and disputes originating from differences of economical, political, and religious discourses or interests. Tetsuhiko thought that it was the influence of ethics and its education that could eliminate all causes of war.
As I have briefly reviewed, the Carnegie Council and the Uehiro Foundation are preserving the spirits of their founders with new ideas and strategies to comply with the social requirements of today. It is a great pleasure for us to move forward with the Carnegie Council, hand in hand, for the betterment of the world.
In this sense, our expectation for the future activities of the two Carnegie-Uehiro Fellows is extremely large. I hope they will represent our good wishes in their future activities.
Again, it is a great privilege to introduce Dr. David Rodin as the first speaker for the first Carnegie-Uehiro lecture and to welcome Dr. David Luban as a respondent.
Dr. David Rodin has worked on Just War theory and ethics of international conflict, business ethics, and bioethics. His first book, War and Self-Defense, was awarded the American Philosophical Association Frank Chapman Sharp Prize for the best monograph on the philosophy of war and peace. David Luban, his respondent, wrote the book, Legal Ethics and Human Dignity. He ranges over such topics as the moral psychology of organizational evil, the strengths and weaknesses of the adversary system, and jurisprudence from the lawyer's point of view.
Now David Rodin will give us a lecture under the theme of "Torture, Rights and Values: Why the Prohibition of Torture is Absolute."
Thank you very much for giving me the opportunity of making a speech on this special occasion. Thank you very much.
Remarks by David RodinDAVID RODIN: Thank you very much, Joel and Noboru, for those very, very kind words of welcome. It is indeed a very special honor to be standing here today as one of the first Carnegie-Uehiro Fellows, and a particular pleasure to be presenting the first, the inaugural, annual Carnegie-Uehiro Lecture.
My first debt of gratitude goes, of course, to the two organizations, the Carnegie Council for Ethics in International Affairs and the Uehiro Foundation for Ethics in Education. These two distinguished organizations, whose work I'm sure will be familiar to many of you in this room, have worked for a very long period of time in order to make this event and this fellowship a reality, and I am very, very grateful to the two organizations for making this happen.
A particular word of thank you must be said to Mr. Uehiro Sr. and also Mr. Uehiro Jr., who, sadly, cannot be with us here tonight but whose work and support have been instrumental over the long years of the gestation of this project.
I would like to thank Joel and also Noboru, who personally have put a huge amount of work into making this happen. So thank you very much.
I also have to say a word of thanks to David Luban, whose work on this area is some of the work that I have gained most from and that I respect the most. It's great to have you here as a respondent.
Now, the subject of today's talk is, of course, one of considerable topical concern. But the fact that this is a topical question, the issue of torture, is itself a sad and rather remarkable fact.
The entry on "torture" in the 1911 edition of Encyclopedia Britannica began with these words: "The whole subject of torture is now one of only historical interest in civilized parts of the world." A hundred years after that was written, torture is once again very firmly on the agenda, both in America and in Europe.
We have had the photographic spectacle of American soldiers torturing detainees at Abu Ghraib. We know that the U.S. government has engaged in torture and torture-like practices at Guantanamo and its secret detention centers around the world. And we know that the United States, assisted by its allies, such as the United Kingdom, has rendered detainees for torture in other jurisdictions around the world.
Now, what I want to do in today's lecture is to explore and to take seriously and to defend the idea that there is an absolute prohibition against torture. The way that I am going to do that is to explore the ways in which the values of the community can shape and condition the obligations owed by governments to their people, their subjects.
Now, John McCain actually said a very, very wise thing in the debate on torture. He said that the issue is not fundamentally about them; it's about us. Now, of course, it is about them—people have rights against being tortured, and torture will in almost all circumstances violate those rights.
But I want to suggest that it is possible that acts of torture may not in fact violate rights. There may be instances when it is not primarily about them. The gist of the argument that I will present today is that in those cases it becomes about us; it becomes about the values that we share as a nation and the way that those values interact with the notions of authority and governance.
So, first, some clarification. What do I mean by an absolute prohibition? Well, an absolute prohibition is simply one that allows for no justifying exceptions. The prohibition has this form as we find it in international law.
First, the UN Convention Against Torture and Other Inhumane and Degrading Acts states, quite explicitly, that no exceptional circumstances whatsoever, whether a state of war, threat of war, internal political instability, or any other public emergency, may be invoked as a justification for torture. That, in essence, is the idea of an absolute prohibition of torture.
Now, the academic debate. For those who want to argue against the idea of an absolute prohibition, the almost inevitable starting point is a hypothetical case of the terrorist and the ticking bomb. I'm sure that many of you will have come across this case before.
As the scenario runs, a terrorist has placed a bomb in a crowded urban center. We don't know where the bomb is. We have captured the terrorist. We have him sitting in a cell. We interrogate him as forcefully as we can within the bounds of the Geneva Convention. He will not reveal the location of the bomb. The question is: Is it permissible to engage in torture in order to obtain the information and defuse the bomb?
This argument is normally seen as what a philosopher would call a consequentialist argument. So the idea is that we recognize that the detainee has a right against being tortured, but we invoke the intuition that rights can sometimes be overridden justifiably when a great moral evil is at stake, rescuing tens, hundreds, thousands, maybe even hundreds of thousands, of people.
Now, this idea, I think, has been very, very effectively critiqued by a number of people, the idea that we can think about these things in purely consequentialist terms.
But there is another interpretation of the argument, which doesn't appeal solely to consequences but places the argument squarely in the domain of rights. The other way of thinking about the argument is to say: Well, if the man in the cell has really planted the bomb, could we not explain the fact or the permissibility of torturing him by invoking the idea of self-defense? Could we perhaps posit that the man in the cell has given up his right against being tortured in the same way that somebody who tries to attack you with lethal force gives up the right not to be killed in defensive force?
Now, I have to say that I am very, very skeptical about this form of argument. I am very skeptical that the conditions for self-defense will ever actually be fulfilled in the way that they would have to be for the justification to proceed.
One of the things about the thought experiments that philosophers use is that we can simply stipulate as we will. We can stipulate that the man in the cell is guilty. We can stipulate that if we torture we will get the information, and that getting the information will allow us to save the people. But, of course, in real life we will never know that. So I believe that in real life it is almost certain that these situations will not arise. But in a theoretical sense, I do believe that they are possible.
The question then remains: Can we understand the idea of an absolute prohibition, even in these kinds of cases, even in these cases where, to use McCain's words, it is no longer about them? Is there anything residual which will enable us to explain why we should not torture in those kinds of situations?
I believe that there is. I believe that the answer to that question has to do with the idea of virtues and values.
Now, in the legal discourse, torture is often linked to the complementary notions of cruel and unusual punishment and to inhuman and degrading acts. What's interesting about these terms is that they are, in part, virtue terms. What I mean by that is that their evaluative content does not only point outwards to the object or victim of the action in question, but it also points inwards to the subject of the action.
So the point is not simply that torture is cruel to and degrades its victims; it is also that torture morally degrades the torturer by manifesting, in perhaps its purest form, the character vice of cruelty. When we say that torture is inhumane, we mean not only that torture treats its victims in a manner unbefitting a human being; we mean also that the practice of torture is inconsistent with our best conception of what it is to be a human being of worthy human character and agency.
Now, the suggestion that I am going to develop is that the rejection of torture is precisely such a value or virtue. But I am going to understand this not in terms of individual virtue, but in terms of a shared collective communal value commitment. The argument will be that because the rejection of torture is a value commitment of our society, we can understand why it is important to maintain the absolute prohibition of torture.
One of the objections that are often raised to this form of argument, an argument based on values and virtues, is one that is often summed up by the idea of dirty hands. The idea behind dirty-hands-type arguments is to say that values, virtues, and so forth are important, but that there can come a point in which a commitment to those values or virtues can become an inappropriate form of self-regard or self-concern.
The example would be when a great moral evil is at stake and the only way to prevent that would be by violating some kind of value commitment or virtue, then one ought to do it. To keep your hands clean at the expense of allowing someone else to suffer a great harm is to be engaged in a morally inappropriate form of self-regard or self-concern.
The man who really gave the classic formulation of this in the political sphere was Michael Walzer, the well-known Princeton philosopher. He believed that his phenomenon of the dirty hands was an absolutely distinctive feature of political life.
One of the examples is exactly the example of the ticking bomb. He believes that if a political leader were faced with the decision of whether to torture a detainee in order to find and disarm a bomb, he would be obligated to do so. He would be obligated to do so even though what he was doing was something that was morally wrong. In Walzer's terms, he would be morally obligated to do something that was morally wrong.
Now, this idea of the dirty hands obligation is particularly powerful where there exists a prior duty of care or obligation. So in the case of torture, a very significant part of what drives the kind of intuition that Walzer was talking about is the idea that a political leader (or their deputed agents, the security services) has a duty of care to the citizens that they are serving.
This claim that there is a duty of care from leaders and state agents towards the population I want to say is true. But it is also a very, very significant oversimplification of the status of the relationship between an official and the population. To show this, I want to introduce a very basic account of the genealogy of authority as you might find it in many mainstream political theorists.
Within the liberal tradition of political theory broadly understood, we take it as axiomatic that authority is not simply vested in a particular person, such as the king, because of the status they have. Authority, we believe, derives from the people themselves. Authority is delegated to the leader from the led.
Now, of course, as part of this delegation of authority to leaders and to state officials, we understand that obligations arise to use these authoritative powers in a responsible way that contributes to the welfare of the population. If leaders did not use the authority in that way, the population would not deputize them or delegate the authority to them to do so. So the obligation of leaders to the population, and their authority, is part and parcel of this same relationship that exists between a leader and a people. So far, so good.
But there is an additional element to the story, an element that I think has been overlooked by many of the thinkers writing in this area, because communities also have certain commitments to certain kinds of moral value. These value commitments place a constraint on the authority that is deputized to the leaders and their agents.
Let me give you a simple example. We as a population grant to state officials the authority to capture criminals, to try them, and imprison them. Part and parcel of that relationship, as I have suggested, is the obligation to use those authorities in a way that maintains the safety of the community.
But if the community is a just one, it will also have certain value commitments, and amongst them the commitment to due process before the law. Now, that commitment has a very, very important role, because it places limits both on the authorities of state officials and also on the obligations that they owe to the population.
So if you take one of the many examples from Hollywood movies, where the policeman could lock away the bad guy by violating an important principle of due process, we don't say that the policeman is obliged to do that. To the contrary, he is obliged not to do that; he is obliged not to do that even if he could increase the welfare of the general public by doing so. Why? Because that value, the value commitment of the population to principles of due process, acts as a constraint both on the authorities of state officials and on the obligations that they owe to the population.
Now, I am sure you can see where I am going with this idea. What I want to argue is that the commitment to rejecting torture plays precisely this role in conditioning and limiting the authority and the obligations that state officials owe towards us.
One thought you might have as this idea is introduced is to say: Well, is it really true that we as a society have this strong commitment? Before 9/11, I think that very few of us would have questioned that fact or that statement. Now, however, it seems we do have to question that.
How, then, do we understand these kinds of communal value commitments I am talking about? What forms of evidence could demonstrate their existence or nonexistence? Well, there are obvious forms of evidence that you might look at.
One form of evidence is you might look at opinion polls, asking people what they believe about these questions. In that context, the results are not as pessimistic as you might have assumed. The most comprehensive poll on this topic that I am aware of, which was a USA Today Gallup poll conducted a few years ago, found that 59 percent of respondents in the United States would not approve of the U.S. government torturing known terrorists, even if those known terrorists know details about future terrorist attacks in the United States and the government thought that such torture was necessary to combat terrorism. Fifty-nine percent.
Another form of evidence that you might look at is the voluntary commitments that a society has undertaken as part of its democratic processes. So one highly relevant feature or fact is the fact that the United States, along with almost all Western governments, are signatories and have ratified the UN Convention Against Torture. So here we have an explicit institutionalized legal commitment that we as a society have taken through our democratic processes.
Now, I think in a way that these forms of evidence are in some ways not the deepest form of evidence in terms of how we should think about the existence of a communal value. If we have time at the end, I'll say a little bit more about how I think we should view those values. But I think that they at least provide us with a prima facie case that this is a very, very important value in our society.
If we do assume that, what follows from it? Well, one thought that you might have, or one kind of objection to the line that I am suggesting, is that you might say: "Well, okay, I believe that the rejection of torture is an important value of our society, and I understand and I buy the idea that these values can sometimes constrain the powers and the obligations of state officials." But you might say that surely a value commitment of this kind is never viewed as strong enough to allow the foreseeable death of citizens. Surely when something like that is at stake, these kinds of value commitments have to be put aside. They surely can't be strong enough to override a constraint on action where the lives of citizens are at stake.
Well, the answer to that is: This kind of thing happens all the time. We constantly allow avoidable deaths of citizens because of these kinds of value commitments.
Let me give you an example. From time to time—this is something that happens a lot in England; I don't know whether it happens here as much—but in England from time to time a proposal is made to build a fast motorway through an area of countryside. Often what happens is that this is put to the local population through their local governmental processes, and very often the local population rejects it because of their commitment to aesthetic and environmental values.
But they reject the proposal to build a motorway knowing that if they do so certain concrete people will die who otherwise would have lived. Why is that? Well, we know that motorways are a lot safer than the small roads that they replace. So some people will die in car crashes, absolutely foreseeably, who otherwise would have been saved. We know that motorways are faster than small roads, so we know that certain people will make it to hospital in time to be saved who otherwise would not have.
So here is an example where we choose to allow the foreseeable deaths of citizens not for some kind of overriding moral value, like the rejection not to torture, but for a seemingly less important value commitment, a commitment to beautiful countryside, aesthetic and environmental values.
These examples are a constant feature of political life. Governments frequently give money to ethics programs and philosophy programs; they fund art programs. They do that knowing that they won't be able to use that money to fund ambulances and police officers, knowing that, predictably and foreseeably, certain people will die and will be murdered who otherwise could have been saved. This tradeoff, this idea that we as a society accept costs, even up to accepting the deaths of citizens, in order to maintain values that are important to us is an absolutely central feature of political life.
These examples are helpful, I think, because they show us not only how commonplace and mundane this kind of process that I am describing is, but it also helps us to see that accepting the risk that some of our citizens may die at the hands of a terrorist in a ticking-time-bomb-type situation, that accepting those risks in order to maintain our value commitments to rejecting torture, that that commitment is reasonable.
Why is it reasonable? Well, the risks of dying at the hands of a terrorist in one of these highly particularized ticking-time-bomb situations is a risk that is spread throughout the whole population, and the risk to each of us is very, very small. It is certainly small when we compare it to other risks that we voluntarily accept, also partly in order to maintain our prior value commitments.
To take two statistics, in the United States road fatalities are running at about 43,000 per year and firearms-related fatalities at about 27,000 per year. Now, clearly, these numbers could be very significantly reduced if it were not for a prior commitment to a relatively lenient policy on handgun ownership on the one hand, and to a shared desire to have an efficient transport system where we can travel at 65 miles an hour rather than, say, 30 miles an hour. When we put the risks that we bear by maintaining the absolute rejection of torture in that kind of context, I think we can see that it is indeed a reasonable risk to bear.
The point that I am making is in many ways a very, very simple one. The value commitment that we as a society share not to torture is in many ways a public good comparable to an efficient transport system, a road network, or a hospital system. And, like any public good, it doesn't come cost-free. The cost of maintaining that value commitment is clearly that sometimes, occasionally, certain citizens may be killed who otherwise would not be.
But if we believe in that value, if, as we have done by democratically ratifying a legal commitment not to torture, then as a matter of logic it would seem that we have to recognize and be prepared to bear the costs that go along with that. What we can't do is maintain a commitment to the value and still in some sense require and desire officials to torture on our behalf.
Now, a final thought or objection that you might have to this line of argument is you might say: "Well, I understand all of that. I buy that this is a commitment. I buy that it has these restraining effects. But there is still something special about the idea of preventing deaths in a terrorist-type situation."
You might think that the kind of argument that I have suggested to you is only plausible because I have phrased it somehow in a very impersonal way, as a matter of avoiding future statistical risks of the kind that are generated by many other public policy decisions.
But you might think the ticking-time-bomb situation is different to that. The key feature of that example, one might think, is precisely its concrete immediacy—the bomb is ticking now, and there are certain people who are going to die if you don't torture the guy in the cell. You might think this is really what it's all about. That's not captured by these other kinds of examples that I have been describing.
Now, in line with this thought, people who do want to defend the practice of torture will sometimes try to drive home this kind of personalized nature of the threat by asking a very, very striking question. They'll say: "What if it was your family who were on the line? What if it were your children who were about to be blow up by the bomb?"
I think that the only honest answer to that question is that if it were my children, I would probably be induced to commit any kind of abomination, including torture.
But what does that tell us about the moral justifiability of torturing? The answer is that it tells us absolutely nothing. What it tells us about is what you can get human beings to do under situations of extreme duress and pressure.
Now, in these kinds of impossible cases, where there is impossible psychological pressure, we are in the grip of overwhelming emotions and extreme duress. In those kinds of situations, we tend to judge action in a more lenient way. So if somebody did torture in that context, we would tend to have compassion for them, to perhaps be lenient, to perhaps excuse the action.
But these kinds of conditions do not lead us to justify. They do not lead us to say that the action was right. At most, they lead us to say that the action was understandable, that it was an impossible situation.
In fact, I think that the highly personalized, imaginative stance that this question invites us to inhabit is precisely the wrong one. It's the wrong one for understanding the appropriate moral context of these situations.
The question we should be asking is not "What would I do if I were in that situation and my children were on the line?" The question we should be asking is, "What standards do I now, here, and, after proper reflection, believe should apply to persons in these ticking-bomb situations, given both my underlying moral values and commitments and also the risk, which is a non-zero risk, that I or my loved ones will be in this kind of impossible situation at some time in the future?"
It is this more removed and reflective position or standpoint that I believe will genuinely give us the best answer to that question of what is right in those circumstances.
I want to draw things to an end because I do want to allow significant time for your questions. But I just want to end with a brief reflection on the relationship between terrorism and values, because I don't think that it is accidental that the debate on torture is so intimately tied to questions of terrorism and the threat of terrorism.
Now, it has often been said, both here in the United States and in England, that we should view terrorism as a threat not merely to our physical selves but in some sense as a threat to our values.
There is one sense, I think, in which this is clearly a kind of meaningless hyperbole. It is hard to know how even to make sense of the idea that terrorism, a physical attack, could in some sense impel an immaterial entity such as a value. I mean it just seems to what a philosopher would call a category mistake. It's confusing two radically different kinds of entity.
But there is another sense in which I think that this statement is exactly right. The real danger of terrorism as I see it is not the physical harm that can be offered to our persons and our property, which so far, thank God, has proved to be, at least for us in the Western world, relatively small.
The real threat of terrorism is the temptation that it provides to engage in a kind of self-mutilation or self-destruction of our own values, because at the end of the day it is only us that can degrade or abandon our value commitments. It is that temptation that I believe we would do very, very well to resist with considerable courage.
Response by David LubanDAVID LUBAN: I am extremely delighted to be here. I am very grateful to our sponsors. I am grateful to the Carnegie Council, which is dedicated to what I think is a remarkable proposition, which is that ethics does have to do with international policy. It's something that a lot of people who describe themselves as realists doubt. The Council has been a persistent voice for something that I think is true and sane and decent.
I am also extremely grateful to the Uehiro Foundation, whose work I have been less familiar with because I haven't been reading the Journal, but has a commitment to ethics in education that I think is extraordinarily important.
I am also very pleased, not only that the Carnegie Council has been supportive of ethics, but more specifically of the value of philosophy. Those of you who read the journal Ethics & International Affairs will know that it maintains an extraordinarily high level of rigor and is not afraid to bring philosophers into the conversation. I think many people have the view that a cab driver once expressed to me, that philosophy is kind of like dermatology—it's not going to kill you, but it's not going to do that much for you either.
I think that the work of people like David Rodin is extraordinarily important in showing that philosophy can make a genuine contribution to the public conversation about ethics and international affairs.
I will repeat what others have said before. War and Self-Defense is a book of extraordinary brilliance. David's papers, including the ones that are critical of me, are works of extraordinary brilliance. They combine both a feature of tremendous clarity, an enormously high level of rigor, with lucidity and brio in arguing for what are sometimes paradoxical conclusions.
Now, the argument that he has offered tonight is, I think—let me just put it very briefly in the form of a syllogism: If we have a commitment against torture, then it leads to an absolute prohibition on torture. That's the major premise. The minor premise is that we do have that commitment. Therefore, the conclusion is that it is an absolute prohibition.
What that is warding off is the idea that even though we have a commitment against torture, we want our leaders to break that commitment sometimes, under some circumstances, that we want them to get their hands dirty on our behalf, that we want them, so to speak, to be the moral fall guy. I think that he has argued that there is something deeply incoherent about this position.
Now, I am in the somewhat awkward position of being the official critic and commentator of a paper with which I am on the same side. But I realize, as I was listening to David and reading the paper, that I have a somewhat more pessimistic, somewhat darker, view about what the contents of our cultural commitments are. I think that is going to be the main point of my discussion, my criticism. So I am going after the minor premise of the argument, and that is the premise that we do have a strong public commitment against torture.
Now, the fact is that it is a very difficult matter to read off what a culture's commitments are. This isn't something that you can simply pull straight off of evidence. It is always a deeply interpretive project, and interpretations can be met with counter-interpretations.
I think we saw that this morning. The Supreme court reversed a longstanding precedent and found that the Second Amendment to the Constitution does guarantee individual gun rights.
Now, those of you who have followed the constitutional debate—I don't think there is any particular reason why anyone should delve deeply into it—but it has been a longstanding question about whether the Second Amendment really was about the need to have a militia or whether it was an expression of the American Founders' commitment to not having a standing army, bur rather having local militias that would carry the burden of defense; whether it was based, therefore, on fear of the government; or whether, as opponents of gun control have argued, it was about instead individual gun rights.
The fact of the matter is that the historical record, as something that requires interpretation, can support both possibilities. So there is always a kind of interpretive achievement involved in trying to read off the culture's commitments.
Now, David in his talk cited two particular kinds of evidence. In the paper, he mentioned a third, which I want to briefly allude to, although he didn't have time to go into it.
The first is public opinion polls. The public opinion polls capture something evanescent. Oftentimes, they don't capture what our deepest commitments are.
I was rather stunned some months ago when I discovered that a public opinion poll, a Gallup poll taken in 1946, showed that 13 percent of Americans believed in genocide against our adversaries in World War II. Now, that was not a public commitment of the United States. Obviously, it was the worst angels of our nature expressing itself. There is something a little bit ephemeral about public opinion polls.
The fact of the matter is that public opinion about culture has been mixed. David cited one poll that showed almost six out of ten Americans against torture even if it reveals important information. There was another poll taken by the Pew organization that same year that showed a darker picture: about 50 percent of Americans believed that torture should often or sometimes be used against terrorist suspects.
It was a very interesting poll because Pew has an interest in religion, so they were also breaking it down by religious commitments, and discovered that Christians are much more pro-torture than secularists.
They also broke it down by elite professional groups. It turned out, interestingly, that the single most anti-torture professional group in the country is intelligence professionals. So the people who might be most interested in using these techniques are most opposed to them.
But I think that what it shows is that there is at least some commitment against torture, but it's a little bit of a shaky commitment.
The second piece of evidence is laws. Here David points to the fact that the United States is a party to the UN Convention Against Torture. He quoted Article 2, Section 2 of it, which said that there are no justifying exceptions to the Convention Against Torture.
Now, the fact is that international law is also an interpretive enterprise. I think that probably everybody knows that one of the major industries of the Bush Administration lawyers has been offering an alternative interpretation. Because I was traveling up here today, I missed Professor Yoo's testimony before Congress. I don't know exactly what he said. I'd read the testimony. But I'm going to assume for the moment that these are good-faith legal interpretations. I will just mention, since I think I'm supposed to play the Devil's Advocate, what the interpretation that the commitment is a lot weaker and more limited than David suggested might be.
First of all, about two years ago, the State Department's legal advisor, John Bellinger, went before the United Nations Committee on Torture to make our biannual report and stunned a lot of us when he said that if you actually go back and look at the negotiating debates around the Convention Against Torture, the U.S. position has always been that it doesn't apply in wartime.
I was rather stunned. I dug out the debates. Sure enough, two U.S. representatives had said that. What he left out, of course, was the other half, which was that the United States thought that the wartime standards against torture were tougher than the Convention Against Torture, and that's why the United States didn't want them supplanted. So there was half the argument but not the other half. It also ended up that this wasn't reflected in the treaty as the Senate finally ratified it.
But here you have the highest lawyer in the State Department going before the UN Committee and saying: "Well, the U.S. believes we are at war and believes that the Convention Against Torture does not apply in wartime."
The Convention Against Torture, when the Senate ratified it, had attached a reservation saying, "The operative articles of this Convention are not self-executing." That's lawyer's technical talk for that they are not enforceable federal law until Congress implements them. Congress has implemented parts of them. It has not implemented other parts.
Those of you who followed the Supreme Court's Medellín decision earlier this term know that the Court now said: "That's right; nothing that is not self-executing is binding U.S. law." Many of us fear that this is the first step in the Supreme Court saying: "Well, that includes the Geneva Conventions, that we think that the Geneva Conventions aren't self-executing and they aren't binding U.S. law."
Now, is this just disingenuous? I don't think it is. I think that for those who are arguing this point of view—actually, their view is: "Let's not go overboard about what tough-minded U.S. negotiators agreed to in the past. If you actually look at the technical details of the law, we think that U.S. negotiators committed the country to a lot less than international law enthusiasts believe that they were committed to, and we are going to provide you legal arguments about why that isn't true."
So that, for example, the United States emphasized that the portion of the Convention Against Torture that says "cruel, inhuman, and degrading treatment is something that we undertake to prevent," because it's not self-executing, Congress had never implemented it; so the argument was it didn't apply. Finally, Congress implemented it, but not until the year 2005.
But the main way in which the United States' legal interpretations have been that we are committed a lot less to opposition to torture comes simply from looking at the definition of torture.
Here I think that the argument of those who defend U.S. so-called "enhanced interrogation techniques" is that all that we ever meant was that the worst forms of torture, the paradigmatic torture—the rack, the thumbscrew, the hot irons, medieval torture techniques—were henceforth forbidden, but that that never meant to refer to such things as sleep deprivation; it never meant such things as making people stand up for hours and hours, or the manipulation of temperature, or bombarding people with loud music—that those were never meant to be things that we had committed ourselves to because they aren't torture. That has been the rather persistent line that the U.S. government has taken.
Whether you agree with it or not—I certainly do not agree with it—it's the view that: "Don't kid yourself about what our legal commitments have been. They have never been commitments not to use these techniques."
I want to say two other things about public opinion. Something that you said, John, was we had our national debate about torture, we had our referendum about it—it was called the 2004 election. Torture won.
We had it again in 2006, after the Hamdan decision, when the Supreme Court said: "Yes, by the way, the Geneva Conventions do protect detainees." Congress, in a bipartisan act of extreme pusillanimity, then changed the law in order to make sure that what had been war crimes, specifically humiliation techniques and degrading tactics, were now decriminalized, and in fact decriminalized retroactively back to 1996.
If Congress is a reliable weathervane of public opinion, it shows a shallow, rather than a deep, commitment to anti-torture.
Finally, in the written version of the paper David points out something that I think is implicit in what he said orally tonight, which is that the opposition to torture is more deeply involved in the nature of our political culture than looking at specific laws would give us to believe, that there is something about living in a liberal political culture, a culture that values individual human dignity, and in which the prohibition on torture is a paradigm case of the kinds of things that liberals oppose, that that shows the nature of our commitment.
Well, the fact is that when we ask people "What are your commitments?" it always turns out that we don't know what our commitments are until we test them against specific cases and specific hypotheticals.
That's the problem with the ticking-time-bomb case. It is meant to get us to agree, "Oh yeah, when I said I was absolutely opposed to torture, I didn't mean in that case," or if somebody says, "Oh, I didn't mean that you can't even slap this guy in the face to get him to talk."
So we go through these, and it might turn out that our commitments are actually more ambivalent than we thought they were. The content of our commitments can't simply be read straightforwardly out of the historical record.
We can find other pieces of our tradition. The famous line of Justice Jackson, "The Constitution is not a suicide pact"—by which he meant: "Well, there might be desperate emergencies in which we chuck some of this stuff." And maybe that's part of the commitment as well.
So what I want to suggest is that where our commitments are is not settled. It's something that I believe is in play. I don't think that we are committed to torture, even so-called "torture-lite." I think that we are basically committed against it. But these things are always contested, they're always in play, and I think that we can't take for granted the cultural achievement of liberalism. I think that this too is something that is always contested and always in play.
So how do we engage in contesting, in establishing a cultural commitment against torture? We do it in several ways.
We have to ceaselessly argue. We have to show, for example, that the ticking-time-bomb case is a ridiculous hypothetical.
Easy to do. It requires, of course, that you know the bomb is there, you know that it is ticking; you know that you've got the right man, you know that he knows where it is; you know that you can't get him to talk any other way, you know that you can get him to talk by torturing him; you know that he can't hold out until the time, or mislead you until the time, that the ticking time bomb goes off; you know that you can do it without him dying or going unconscious. You know all of these things to a certainty. And, of course, that never happens.
So another thing we have to do is point out that there haven't been any ticking-time-bomb cases. I've actually spent the last three years trying to hunt down every alleged ticking-time-bomb case I could find. There are several very prominent ones, which I'd be happy to go through in the question-and-answer period, that always turn out, on closer inspection, to be urban legends or deeply contested, including cases that have been referred to in public by the President of the United States, which turn out—I think the gentle way of putting it was that the President was misinformed. So we have to do that.
We have to show what the actual effects of torture are so that, for example, when we hear, "All the U.S. is doing is making them stand up for a long time," it's important to know that—this was an old KGB technique that was studied by Cornell University scientists in the 1950s, and they discovered that when people stand up for more than eight hours the fluids in their body move south, the heart begins racing to try to get them up north, ankles swell up, blisters break out, people undergo delusions, kidneys begin to fail, all the joints begin to hurt with excruciating agony. People don't know this.
I noticed an interesting change in convention in The New York Times just within the past week. It has always referred to waterboarding as "simulating drowning," when the one article was written by somebody who has actually done waterboarding training with the U.S. military and has been waterboarded himself says, "Nothing simulated about it. It's real drowning interrupted before the death in which, after the individual is waterboarded, you pump pints and pints of water out of their lungs." The New York Times is now referring to it as "near drowning" rather than "simulated drowning." I think that's a victory as well.
You have to show that the military and law enforcement agencies and intelligence professionals are revolted by torture and that they are among the elements of our culture that are most opposed to it.
You have to show people that torture metastasizes, that you can't just torture a few without creating a torture culture that begins to sweep in more and more people.
We don't hear very much, for example, about the hunger strikes at Guantanamo and the methods of force-feeding that are used, but I have no hesitation in saying that the hunger strikers in Guantanamo who have the feeding tube, which is as thick as a small garden hose, inserted and extracted from their nostrils twice a day, some of them for more than 400 days, are being tortured right now, as we speak. This is a torture culture that has gone wild.
Lastly, I think that we have to contest the cultural commitment by accountability. I don't mean criminal trials. It might be that criminal trials are possible for torturers. I actually don't think that this is the ideal solution. But I think the kinds of hearings that the Congress is having now, in which the truth can come out about whether torture came from the pressure from interrogators, from the bottom—it didn't; it came from officials at the top of the government—those are things that haven't been known.
So we need a kind of fumigation in order to make sure that people aren't weakening their commitment against torture based on misinformation, disinformation, or the propaganda that comes from living in a culture in which we have just been "Jack Bauered" ceaselessly for six years.
Let me stop there.
Questions and AnswersJOEL ROSENTHAL: Thank you. That was extremely helpful.
In the spirit of mutual learning and public debate, we want to hear from you. I think what we'll do is maybe collect a few questions.
QUESTION: I have a question, regardless of whether I agree with your bottom line, David. It seems to me two points. Your argument may well be circular. That is to say, the values that people have could be wrong. You began by saying that you didn't think that the self-defense argument—that is to say the rights of the others—would be successful necessarily in showing that torture was unjustified. In other words, that line of argument might be breached to show that torture would be permissible, it wouldn't be a violation of the rights of the terrorist. Then you said the question is about us.
But you haven't yet showed us that our values are correct. You already said that one ground for thinking that they were correct—namely, they violate the rights of the other or the dignity of the other person—might not be correct. So it seems to me that in order not to assume what you have to prove, you have to give another argument for why our values are values that we should retain.
I think, secondly, it doesn't seem to me that difficult to show that in some cases torture would be justified. It doesn't require certainty, it seems to me. Take a policeman. He sees somebody about to shoot an innocent bystander. He knows that the person is aiming at the bystander. He is permitted, if there is no other way to stop this person, to shoot that person, even to kill him, if that were the only way to stop the attack.
Suppose there were an alternative: he could fire an electric charge into that person, causing torture that would end before death, way before death. Presumably, it would be in the interest of the person, the gunman, to be tortured rather than to be killed. If it is permissible to kill somebody, it surely would be permissible to torture that person when it would be better for the very person himself.
Now, this is not the sort of case that we think of when we think about interrogational torture, but it certainly makes it seem that the claim that torture is absolutely prohibited couldn't possibly be true.
QUESTION: It seems to me that there are two points that we have to take into account when we question ourselves about whether torture is permissible. These seem to be where the whole concept becomes fungible.
One is the concept of foreseeable danger versus imminent danger. Imminent danger is, I believe, a concept that relates to my prior speaker's incident. Someone is about to be shot; that is imminent danger. But now, in the war on terrorism, we have this sort of universal foreseeable danger that is so foreseeable that it's about an inch thick and 20 million miles wide, and that is supposed to make everything okay.
I also think that another factor to always be considered is how we define the person that we think we want to torture. That is, how we define how "other" they are, how worse they are than us, how less moral, how less everything else. I think that if in fact we go to our concept of what is a person and what any person is worth or should have as a bottom line of existence, without any religious concept whatever, then it becomes much less fungible if we take these two factors into account.
JOEL ROSENTHAL: Thank you very much. David, do you want to start?
DAVID RODIN: Thank you for your questions. And thank you very much, David, for your responses as well.
Let me say a few words to a couple of the themes that emerged from David's responses and also from the first question and some of the others.
Yes, of course, the achievements of liberalism are constantly contested. Yes, of course, opinion polls capture something very, very ephemeral. Yes, of course, legal commitments are constantly being interpreted and reinterpreted. And the first questioner is right as well, that there is a very important requirement to say something about why these commitments that I'm supposing exist not only exist but why they are actually justified. I think that something can be said about all of those conditions.
I think that there are two ways that you can understand and talk about values, roughly.
One way that we have of talking about values is simply to invoke a preference that we simply happen to have—you know, Mary values tidiness in her partner. She happens to value that. She might value something else.
There are other kinds of values that are very different to that. They don't simply reflect a preference that we happen to have. They, rather, play a distinctive role in a series of public reasons, reasons that we take to be objective in themselves. These kinds of value commitments, or value judgments, are supported by certain underlying values, and they themselves support values of other kinds.
I think that the communal value that I am hypothesizing that we possess, not to torture, is precisely a value of the second kind. It's not simply a preference that we happen to have, whereas we might happen to not have it tomorrow or have some other kind of preference. I think that we can actually show that it is deeply embedded within a whole web of moral and legal reasons.
Actually, some of David Luban's work has been helping to demonstrate exactly this kind of web of reasons.
One of the arguments that David has made, extremely powerfully in my view, is that the prohibition on torture can be derived from some of the most basic elements of a liberal—and here I am using "liberal" in the European sense, commitment to human dignity and to liberty—that the prohibition on torture can be directly derived from that because of the way in which torture as a practice involves the negation of those values in perhaps the most concentrated and profound way.
Other work by Jeremy Waldron, a fellow New Zealander and citizen of New York City, has shown the converse. What Jeremy Waldron has argued is that the prohibition of torture—he is talking here specifically within a legal context—acts as what he calls a kind of legal archetype. What he means by that is that it is a legal norm that helps to sustain and make clear a very wide range of legal norms—and he is thinking here particularly about procedural legal protections—that otherwise may be contested or may be weakened.
Now, if this picture is right, if this prohibition has this status within this network of moral and legal commitments, it is derived, on the one hand, from some of these very, very basic commitments that we as a society have to human dignity and liberty; and, on the other hand, it acts as a kind of guarantor or support for a whole range of other, more peripheral legal commitments, then I think we can start to get a sense and give an answer to the question I think that the first questioner is raising, and some of the doubts that David was raising as well, that this is not simply a kind of preference that we happen to have and that tomorrow we could give up on. It is actually something very, very deep in the philosophical, legal, moral, and cultural background of who we are as a society.
To say one further word as well, to a certain extent I think there is an element of asking ourselves: What is the kind of society we actually want to have? I think that some of your comments were very important in this respect.
It is a matter of bringing these issues out into the light, of subjecting them to this kind of examination, and then really reflecting on the principles and values that we would want again in our somewhat removed and better reflective stance to hold sway within our society.
JOEL ROSENTHAL: David, did you want to speak to either question?
DAVID LUBAN: Yes. I thought I would say one thing in response to each of the questioners.
To the first questioner, I'm not sure that I am convinced by your example because I'm not sure that the example describes the central case of what I think of as torture. The reason is that I think being tortured doesn't consist simply in the experience of pain. There is an easy way to demonstrate that. Not having done it myself, but I have been told that there is almost no pain as bad as the pain of giving birth. And yet, there are millions of women whom I think we wouldn't consider irrational who forgo anesthesia because the context in which they experience the pain turns it from a horrible and degrading experience into a joyful one.
It seems to me that the central practices about torture, about which I think I have strong intuitions, are a different kind than the one-off infliction of pain that stops presumably in a couple of minutes and is done in the heat of a moment. It is a practice of one-on-one. A person is helpless. Their helplessness is about to be magnified with pain, so that it is the combination of terror, humiliation, having one's will broken to another person's will, and pain that I think centrally defines the kinds of practices that liberals find abhorrent. It seems to me that, even if I thought tasering the person might be justifiable, knowing that that inflicts pain, that's not the kind of practice of torture about which I think we have these strong intuitions.
I actually don't know whether torture is a lesser form of evil than death. Many people have, when given the opportunity, facing torture, committed suicide instead. Hell is a place of infinite torture, not infinite oblivion.
In response to the question about foreseeability versus imminence, I think this is really important. Those of you who have read Ron Suskind's very interesting book, The One Percent Doctrine, which is about the evolution of U.S. policy—there is one striking incident, in which Vice President Cheney is given very tangible evidence of an attempt by al-Qaeda to obtain nuclear weapons and, according to Suskind, looks at the people in the office and says, "If there's even a 1 percent chance that this is true, we have to treat it as a certainty." Now, obviously, the 1 percent there is just meant as a metaphor for a tiny, little number. I don't think there's anything magic about that number.
The principle that he is invoking is one that I think is not crazy. It's a catastrophe-avoidance principle. It's what some have called the "precautionary principle." Environmentalists often use the precautionary principle in order to resist developing some new kind of genetic oil-eating bacteria: "If there's even a 1 percent chance that this will gobble up all the oil in the world, then we've got to avoid it."
But notice that what it does is to convert every case into a ticking-time-bomb case. If you have to treat the tiny-probability event as though it were a certainty, then it becomes the ticking-time-bomb case. I think that this is a real problem.
QUESTION: When you talk about an absolute right, I was going to expand the definition for myself. But now you just gave a definition of torture, as one-to-one with some purpose in mind. But it would seem to me the easiest one is going back to how we napalmed during the Vietnam War. Now, a lot of people were tortured for the rest of their lives—by dropping a bomb. Or even now, whether you consider Afghanistan or Iraq, one of them a just war, many times we drop bombs based maybe on information there's a terrorist there, but many times there are children and women and innocent people.
So it seems to me when you say it's absolute—and I'm not disagreeing—but maybe we need to expand our whole concept of humanity to include that in a much wider range. Thank you.
QUESTION: One of the questions that I had was that most of the action that we are really talking about is post-facto corrective action, but it also serves the purpose of being a deterrent action for others.
Sometimes when you deal with an individual in a compassionate manner, without the use of torture, whether physical or even mental, it might work in that particular situation, but then it sets a precedent, and then that gets quoted in future cases and sometimes weakens the case of the authority, whether it's the government or a school authority or even authority at home, in a family.
I think that is one thing which works out to be a challenge. I'm not discounting—I am completely on your side. But it is a big challenge for people who are in a position of authority to balance post-facto corrective action and the future impact of that in terms of deterrence.
The second thing I wanted to say was I think there is something like a vicious cycle of torture, because I heard the lady there say that when they are in a less right position, less moral position, what can you do?
But from that individual's perspective, who is indulging in that act of terrorism or violence, that individual thinks that he or she is more right, more moral, than the others around him. That is what forces that individual to get into that act.
So whether it is torture that the person experienced as a child at home, in school, because of the color of their skin, or a minority, or whatever it is, that torture is what plays up and results in that kind of an act of violence. And sometimes people think that the only language they would understand is, again, of only torture.
But I think when there is imposition of one value system on another set of individuals who might have a different value system, which would be when you say somebody is less moral or less right, is when torture really begins. I'd like you to address that as well.
DAVID RODIN: On the question about the harm that we do to people when we drop bombs or drop napalm, you're absolutely right to point this out as absolutely horrendous forms of harm, and I don't want to disagree with you about that for one moment. And yet, I think that there is a possibility to draw a distinction between those kinds of horrendous harms and the more extreme moral harm of torture still.
It is not an accident, I think, that people who engage in torture take extreme measures to make sure that the victim does not kill themselves. Many people who have written about the experience of torture have said very clearly that they would have preferred to die than to continue with the torture. That I think speaks to something very distinctive about the process of torture and the relationship between the torturer and the tortured, which is one of absolute power and absolute powerlessness on the other side.
I think, as well, one difference between the harm that we do to somebody in collateral damage when we drop a bomb and the harm that we do when we torture them, which many philosophers have thought to be significant, is that in the torture case we are inflicting pain on a person as a means to achieving some further objective.
Now, in the case of collateral damage, we are not using that harm as a means to something we want to happen. We know that the harm will happen, and we regret that it happens, but it doesn't have that characteristic of using that person, or the harm inflicted on that person, as a means to something else.
Now, I don't want to say that that always makes the definite moral difference and that one is always justifiable and the other isn't, but that is certainly a difference between those two different cases.
Just on the comments here, I think I agree with pretty much everything that you have said. In fact, in my remarks, when I said that I was skeptical about what philosophers call the consequentialist case for torture in the ticking-time-bomb situation, I didn't spell that out, but I was thinking about very much these kinds of characteristics of the case, the fact that torture does not tend to be limited and unique; when it happens, it tends to set precedent, to continue to metastasize, to be used on ever more and more trivial cases.
If we accept we can torture in this one case of the ticking time bomb, what about the next time when it's not quite as urgent but it's almost as urgent? We quickly end up with a situation in which getting any kind of intelligence at all in the broader war on terror can seem to be assimilated to this. So I think that you are absolutely right about that.
DAVID LUBAN: I actually have nothing to add to what David said in response to your question. Maybe just that you do raise an incredibly important puzzle, which is why we accept certain forms of political violence, military violence, and not others.
Some might say the fact that 25 or so high-value detainees have been subjected to so-called torture-lite pales to insignificance when you consider the number of people who are in deep physical pain as collateral damage of bombing. I don't disagree with that.
I'm not sure that the difference between intentionally doing it and doing it as a by-product, which I think is the heart of David's response, satisfactorily explains it. But it's a contradiction that I think we have to live with.
In response to your point that torture might not just be forward-looking, in the sense of getting information that is needed in this case, but that it also might be a deterrent, that's true. It is part of the reason, unfortunately, that tyrants have so often resorted to torture. It's not so much that they are trying to get information; it's that they are trying to raise the cost of resistance against them by knowing that if you get caught, that you won't just be thrown in jail, you will be tortured as well.
But I'd like to just say one thing about the consequentialist case against torture on grounds of security. That is, I think a kind of collateral harm that U.S. torture has done to U.S. national security is that there is an unknown number of people who might have come forward to U.S. forces with information, let's say in the Iraq insurgency, who didn't afterwards, after Abu Ghraib, either because they were so angry that they wouldn't do it, or because they were afraid that they might be grabbed and wind up in the next Abu Ghraib or in Camp Bucca.
This is a distinct harm to intelligence gathering. This isn't a benefit of torture, this is a harm of torture, to intelligence gathering.
JOEL ROSENTHAL: Thank you, David. Thank you, David. I very much appreciate—we all appreciate—your taking this very difficult topic and elevating it to this level of debate.
Thank you very much for coming.