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Torture Author(s): Henry Shue Source:Philosophy and Public Affairs, Vol. 7, No. 2 (Winter, 1978), pp. 124- Published by: Blackwell Publishing Stable URL: http://www.jstor.org/stable/
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HENRY SHUE Torture
But no one dies in the right place Or in the right hour And everyone dies sooner than his time And before he reaches home. Reza Baraheni
Whatever one might have to say about torture, there appear to^ be moral reasons for not saying it. Obviously I am not persuaded by^ these reasons, but they deserve some mention. Mostly, they add up to a^ sort of Pandora's^ Box^ objection:^ if^ practically^ everyone^ is^ opposed^ to^ all torture, why bring it^ up, start^ people^ thinking^ about^ it,^ and^ risk^ weak- ening the inhibitions against what^ is^ clearly a^ terrible^ business? Torture is indeed contrary to every^ relevant^ international^ law,^ in- cluding the laws of war. No other practice except slavery is^ so uni- versally and unanimously condemned in law and human convention. Yet, unlike^ slavery, which^ is^ still^ most^ definitely^ practiced^ but^ affects relatively few^ people,^ torture^ is^ widespread^ and^ growing.^ According to Amnesty International, scores^ of^ governments are^ now^ using^ some torture-including governments which are widely viewed as fairly civilized-and a number of governments are^ heavily dependent upon torture for their very survival. So, to^ cut^ discussion^ of^ this^ objection^ short,^ Pandora's^ Box^ is^ open. Although virtually everyone^ continues^ ritualistically^ to^ condemn^ all torture publicly, the deep conviction, as reflected in actual policy, is in many cases not^ behind^ the^ strong language. In^ addition,^ partial justifications for some of^ the^ torture^ continue to^ circulate.
i. See Amnesty International, Report on^ Torture^ (New^ York:^ Farrar,^ Straus and Giroux, I975), pp. 21-33.
- I primarily have in mind conversations which cannot be cited, but for a written source^ see^ Roger^ Trinquier,^ La^ Guerre^ Moderne^ (Paris:^ La^ Table^ Ronde, Philosophy & Public Affairs 7,^ no.^2?^1978 by^ Princeton^ University^ Press 00048-39I5/78/0702-0I24$OI .00/I
I26 Philosophy &^ Public^ Affairs
B since (^) (4) just-combat killing is a greater harm than torture usu- ally is, and (5) just-combat^ killing^ is^ sometimes^ morally^ permissible, then (6) torture is sometimes morally permissible.
To state the argument^ one^ step^ at^ a^ time^ is^ to^ reveal^ its^ main^ weak- ness. Stage B tacitly assumes that if a greater harm^ is^ sometimes^ per- missible, then a lesser harm is too, at least sometimes. The^ mistake^ is to assume that the only consideration relevant to moral permissibility is the amount of harm done. Even if one grants that killing someone in combat is doing him or her a greater harm than torturing him or her (Stage A), it by no means follows that there could not be a justifi- cation for the greater harm that was not applicable to the lesser harm.
Specifically, it^ would^ matter^ if^ some^ killing^ could^ satisfy^ other^ moral constraints (besides the^ constraint^ of^ minimizing^ harm)^ which^ no torture could satisfy. A defender of at least some torture could, however, readily modify the last step of^ the^ argument^ to^ deal^ with^ the^ point^ that^ one^ cannot simply weigh amounts^ of^ "harm"^ against^ each^ other^ but^ must^ con- sider other relevant^ standards^ as^ well^ by^ adding^ a^ final^ qualification:
(6') torture^ is^ sometimes^ morally^ permissible,^ provided^ that^ it^ meets whichever standards are satisfied by just-combat killing.
If we do not challenge the judgment that just-combat killing is^ a greater harm than torture usually is, the^ question to^ raise^ is:^ Can^ tor- ture meet the standards satisfied by just-combat killing? If^ so, that might be^ one^ reason^ in^ favor^ of^ allowing^ such^ torture.^ If^ not,^ torture will have been^ reaffirmed^ to^ be^ an^ activity of^ an^ extremely^ low^ moral order.
- Obviously one could also^ challenge^ other^ elements^ of^ the^ argument-most notably, perhaps, premise (3). Torture is usually humiliating and^ degrading- the pain is normally^ experienced^ naked^ and^ amidst^ filth.^ But^ while^ killing destroys life, it need not destroy dignity. Which is worse, an honorable death^ or a degraded existence? While^ I^ am^ not^ unsympathetic^ with^ this^ line^ of^ attack,^ I do not want to try to use it. It suffers from being an^ attempt^ somehow^ just^ to intuit the relative degrees of evil attached respectively to^ death and^ degradation. Such judgments should probably be the^ outcome, rather^ than^ the^ starting^ point, of an argument. The rest of the essay bears directly on them.
127 Torture
ASSAULTUPONTHEDEFENSELESS
The laws of war include an elaborate, and^ for^ the^ most^ part^ long- established, code for what might be described as the proper conduct of the killing of other people. Like most codes, the laws^ of^ war^ have been constructed piecemeal and different bits of the code serve differ- ent functions.5 It would almost certainly be impossible to specify any one unifying purpose served by the laws of warfare as a whole. Surely major portions^ of^ the^ law^ serve^ to^ keep^ warfare^ within^ one^ sort^ of principle of efficiency by^ requiring^ that^ the^ minimum^ destruction necessary to the attainment of legitimate objectives^ be^ used. However, not all the basic principles^ incorporated^ in^ the^ laws^ of war could be justified as serving the purpose of^ minimizing destruc- tion. One of the most basic principles for the conduct of war (jus in bello) rests^ on^ the^ distinction^ between^ combatants^ and^ noncombat- ants and requires that insofar as possible, violence not^ be^ directed^ at noncombatants.6 Now, obviously, there^ are^ some^ conceptual difficulties
- See James T. Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts I 200-I 740 (Princeton: Princeton University Press, I975). Johnson stresses^ the^ largely^ religious^ origins^ of^ jus^ ad^ bellum^ and the largely secular origins of jus in bello.
- For the current law,^ see^ Geneva^ Convention^ Relative^ to^ the^ Protection^ of Civilian Persons in Time of War, 12 August 1949 ['9551, 6 U.S.T. 3516; T.I.A.S. No. 3365; 75 U.N.T.S. 287.^ Also^ see^ United^ States,^ Department^ of^ the^ Army, The Law of Land Warfare, Field Manual 27-10 (Washington: Government^ Print- ing Office, 1956),^ Chap.^ 5, "Civilian^ Persons";^ and^ United^ States,^ Department of the Air Force, International Law-The Conduct^ of^ Armed^ Conflict^ and^ Air Operations, Air Force^ Pamphlet I10-31^ (Washington:^ Government^ Printing Office, 1976), Chap. 3, "Combatants, Noncombatants and Civilians." This^ Con- vention was to be^ revised^ at^ a^ Geneva^ Conference^ in^ I977;^ of^ considerable^ interest are the recommendations for^ greater^ protection^ of^ civilians^ advanced^ in^ Sub- comm. on International Organizations of^ the^ House^ Comm.^ on^ Foreign^ Affairs, 93d Cong., 2d^ Sess.^ (I974), Human^ Rights^ in^ the^ World^ Community:^ A^ Call^ for U.S. Leadership, p. 38. For the history, see Johnson, especially pp.^ 32-33^ and^ 42-46,^ although^ I^ am interested here^ in^ the^ justification which^ could^ be^ given^ for^ the^ principle^ today, not the original justification (insofar as it was different). The prohibition against attack^ upon^ noncombatants^ is^ considered^ by^ some authorities to be fundamental. See, for example, Jean Pictet, The Principles of International Humanitarian Law^ (Geneva: International^ Committee^ of^ the^ Red Cross, I966), p.^ 53: "This^ general^ immunity^ of^ the^ civilian^ population^ has^ not
I29 Torture
warfare is an instance of a^ more^ general^ moral^ principle^ which^ pro- hibits assaults upon the defenseless. Nonpacifists who have refined the international code for^ the^ con-
duct of^ warfare^ have^ not^ necessarily^ viewed^ the^ killing^ involved^ in war as in itself any^ less^ terrible^ than^ pacifists^ view^ it.^ One^ funda- mental function of^ the distinction between^ combatants^ and^ noncom- batants is to try to make a terrible combat^ fair,^ and^ the^ killing^ involved can seem morally tolerable to nonpacifists in large^ part^ because^ it^ is
the outcome of^ what^ is^ conceived^ as^ a^ fair^ procedure.^ To^ the^ extent that the distinction between^ combatants^ and^ noncombatants^ is^ ob- served, those who are killed^ will^ be^ those^ who^ were^ directly^ engaged in trying to kill their killers. The^ fairness^ may^ be^ perceived^ to^ lie^ in this fact: that those who are killed^ had^ a^ reasonable^ chance^ to^ survive
by killing instead. It^ was^ kill^ or^ be^ killed^ for^ both^ parties,^ and^ each had his or her opportunity to^ survive.^ No^ doubt^ the^ opportunities^ may not have been anywhere near^ equal-it would^ be^ impossible^ to^ restrict wars to equally matched opponents. But at^ least^ none^ of^ the^ parties
to the combat^ were^ defenseless. Now this^ obviously^ invokes^ a^ simplified,^ if^ not^ romanticized,^ portrait of warfare. And^ at^ least^ some^ aspects^ of^ the^ laws^ of^ warfare^ can legitimately be criticized for^ relying too^ heavily^ for^ their^ justification on a core notion that modern warfare retains aspects of^ a^ knightly joust, or a duel, which have^ long since^ vanished,^ if^ ever^ they^ were present. But the point now^ is^ not^ to^ attack^ or^ defend^ the^ efficacy^ of
the principle of^ warfare^ that^ combat^ is^ more^ acceptable^ morally^ if restricted to^ official^ combatants,^ but^ to^ notice^ one^ of^ its^ moral^ bases, which, I am suggesting, is^ that^ it^ allows^ for^ a^ "fair^ fight"^ by^ means of protecting the utterly defenseless from^ assault.^ The^ resulting^ pic-
ture of^ war-accurate^ or^ not-is^ not^ of^ victim^ and^ perpetrator^ (or,^ of mutual victims) but^ of^ a^ winner^ and^ a^ loser,^ each^ of^ whom^ might have enjoyed, or^ suffered,^ the^ fate^ of^ the^ other.^ Of^ course,^ the^ satis- faction of^ the^ requirement of^ providing for^ a^ "fair^ fight"^ would^ not^ by itself make a^ conflict^ morally acceptable overall.^ An^ unprovoked^ and
- To defend^ the^ bombing^ of^ cities^ in^ World^ War^ II^ on^ the^ ground^ that^ total casualties (combatant and^ noncombatant)^ were^ thereby^ reduced^ is^ to^ miss,^ or ignore, the^ point.
130 Philosophy^ &^ Public^ Affairs
otherwise unjustified invasion does^ not^ become^ morally acceptable just because attacks upon noncombatants, use of^ prohibited weapons, and so on are avoided. At least part of the peculiar disgust which torture evokes may be derived from its apparent failure to satisfy even this weak constraint of being a "fair fight." The supreme reason, of course, is that torture begins only after the fight is-for the victim-finished. Only losers are tortured. A "fair fight" may even in fact already have occurred and led to the capture of the person who is to be tortured. But now that
the torture victim has exhausted all^ means^ of^ defense^ and^ is^ powerless before the victors, a^ fresh^ assault^ begins. The^ surrender^ is^ followed by new attacks upon the^ defeated^ by^ the^ now^ unrestrained^ conquerors. In this respect torture is indeed not^ analogous to^ the^ killing in^ battle of a healthy and well-armed foe; it is^ a^ cruel^ assault^ upon the^ defense- less. In combat the other person one kills is still a threat when killed and is killed in part for the sake of one's own survival. The torturer inflicts pain and damage upon -another person who, by virtue of now being within his or her power, is no longer a threat and is entirely at the torturer's mercy. It is in this respect of violating the prohibition against assault upon the (^) defenseless, then, that the manner in which torture is conducted is morally more reprehensible than the manner in which killing would
occur if the laws of war were honored. In^ this respect torture sinks below even the well-regulated mutual slaughter of a justly fought war.
TORTURE WITHIN CONSTRAINTS?
But is all torture indeed an assault upon the defenseless? For, it could
be argued in^ support of^ some^ torture^ that^ in^ many^ cases^ there^ is^ some- thing beyond the initial^ surrender^ which^ the^ torturer^ wants from the victim and that in such cases the victim^ could^ comply and provide the torturer with whatever is wanted. To refuse to comply with the further demand would then be to maintain a second line of defense. The vic-
tim would, in^ a^ sense, not^ have^ surrendered-at^ least^ not^ fully sur- rendered-but instead^ only retreated.^ The^ victim^ is^ not,^ on^ this^ view, utterly helpless in^ the^ face^ of^ unrestrainable^ assault^ as^ long as^ he^ or she holds in reserve^ an^ act^ of^ compliance which^ would^ satisfy the torturer and bring the torture to^ an^ end.
I32 Philosophy & Public (^) Affairs
opposition in any form considered objectionable by the (^) regime. Pro- hibited forms of expression range, among (^) various regimes, from participation in (^) terroristic guerrilla movements to the publication of accurate news (^) accounts. The extent of the suffering inflicted upon the victims of the (^) torture is proportioned, not according to the responses of the (^) victim, but according to the expected impact of news of the torture upon other people over whom the torture victim (^) normally has no control. The function of general intimidation of others, or (^) deter- rence of dissent, is radically different from the function of (^) extracting specific information under the control of (^) the victim of torture, in respects which are central to the assessment of such (^) torture. This is naturally not to deny that any given (^) instance of torture may serve, to varying degrees, both (^) purposes-and, indeed, other purposes still. Terroristic torture, as we (^) may call this dominant type, cannot sat- isfy the constraint of (^) possible compliance, because its purpose (intimi- dation of persons other than the victim of the torture) cannot (^) be accomplished and may not even be capable of (^) being influenced by the victim of the torture. The victim's (^) suffering-indeed, the victim-is being used entirely as a means to an end over which (^) the victim has no control. Terroristic torture is a (^) pure case-the (^) purest possible case- of the violation of the Kantian (^) principle that no (^) person may be used only as^ a^ means.^ The^ victim^ is^ simply a^ site^ at which great pain occurs so that others may know about it and be frightened (^) by the (^) prospect. The torturers have no particular reason not to make the (^) suffering as great and as extended as possible. Quite (^) possibly the more (^) terrible the torture, the more (^) intimidating it will be-this is (^) certainly likely to be believed to be so.
Accordingly, one^ ought to^ expect extensions^ into^ the sorts of "ex- perimentation" and^ other^ barbarities^ documented recently in the cases of, for^ example, the^ Pinochet^ government in Chile and the Amin government in^ Uganda.'0 Terroristic torturers have no (^) particular rea- son not to carry the torture (^) through to the murder of the (^) victim,
io. See United Nations, General Assembly, Report of the Economic and (^) Social Council, Protection^ of Human^ Rights in^ Chile^ (UN Document^ A/3I/253, 8 Octo- ber I976, 3Ist Session), p. 97; and Uganda and Human Rights: Reports to the UN Commission on Human (^) Rights (Geneva: International Commission of Jur- ists, 1977), p. ii8.
I33 Torture
provided the victim's family or friends can (^) be expected to spread the word about the (^) price of (^) any conduct compatible with disloyalty. (^) There- fore, terroristic (^) torture clearly cannot satisfy even the extremely (^) mild constraint of providing for the possibility of (^) compliance by its victim. The degree of need for assaults upon the (^) defenseless initially ap- pears to be quite different in the case of (^) torture for the purpose of extracting (^) information, which we may call interrogational torture., This type of torture (^) needs separate examination because, (^) however condemnable we ought in the end to consider it (^) overall, its (^) purpose of gaining information appears to be consistent with the (^) observation of some constraint on the part of any torturer (^) genuinely pursuing that purpose alone. Interrogational torture does have (^) a built-in end-point: when the information has been (^) obtained, the (^) torture has accomplished its purpose and need not be (^) continued. Thus, satisfaction of the con- straint of (^) possible compliance seems to be quite (^) compatible with (^) the explicit end of interrogational torture, which could be (^) terminated upon the victim's compliance in (^) providing the (^) information sought. i i. A further source of arbitrariness is the fact that there (^) is, in (^) addition, no natural limit on the "appropriate" targets of terroristic (^) torture, since (^) the victim does not need to possess any (^) specific information, or to have (^) done anything in particular, except (^) possibly to have acted (^) "suspiciously." Even the latter is not necessary if^ the^ judgment is^ made, as^ it^ apparently was by the (^) Nazis, that random terror will be the most effective. It has been suggested that there might be a (^) category of "deserved" (^) terroristic torture, conducted only after a fair trial had established the (^) guilt of the torture victim for some heinous crime. A fair (^) procedure for (^) determining who is to be tortured would transform the torture into a form of (^) deterrent punishment- doubtless a cruel and unusual one. Such torture would stand only with^ a^ general deterrent (^) theory of (^) punishment according to^ which^ who^ is^ punished depends upon guilt, but how (^) much he or she is punished depends (^) upon supposed deterrent effects. I would (^) think that any finding that terroristic torture could be fitted within a (^) deterrent theory of punishment (provided the torture was (^) preceded by a fair (^) trial) could cut (^) either way and would be at least as (^) plausible a reason for (^) rejecting the general theory as it^ would^ be^ for^ accepting the^ particular case^ of^ terroristic torture. (^) But I will not pursue this^ because^ I^ am^ not^ aware^ of^ any current (^) practice of reserving torture as the sentence for people after^ they are convicted (^) by a trial with the usual safeguards. Torture customarily precedes (^) any semblance (^) of a trial. One can, of course, imagine various sorts of torture other than the (^) two common kinds discussed here. I2. These two categories of^ torture^ are not intended to (^) be, and are not, exhaustive. See (^) previous note.
I35 Torture
The second possibility is the capture of someone who (^) is passive toward (^) both sides and essentially uninvolved. If such a bystander should happen to know the relevant information-which is very un- likely-and to be willing to provide it, no torture would be called for. But what if the victim would be perfectly willing to provide the infor- mation sought in order to escape the torture but does not have the information? Systems of torture are notoriously incompetent. The usual situation is captured with (^) icy accuracy by the reputed informal motto of (^) the Saigon police, "If they are not guilty, beat them until they are."13The victims of torture need an escape not only from beat- ings for what they know but also from beatings for what they do not know. In short, the victim has no convincing way of demonstrating that he or she cannot comply, even when compliance is impossible. (Compare the reputed dunking test for witches: if the woman sank, she was an ordinary mortal.) Even a torturer who (^) would be (^) willing to (^) stop after learning all that could (^) be learned, which is nothing at all if (^) the "wrong"person is being tortured, would have difficulty discriminating among pleas. Any keep- ing of the tacit bargain to stop when compliance has been as complete as possible would likely be undercut by uncertainty about when the fullest possible compliance had occurred. The difficulty of demonstrat- ing that one had collaborated as much as one could might in fact haunt the collaborator as well as the (^) innocent, especially if (^) his or (^) her collaboration had struck the torturers as being of little real value. Finally, when the torturers succeed in torturing someone genuinely committed to the other side, compliance means, in a word, betrayal; betrayal of one's ideals and one's comrades. The possibility of be- trayal cannot be counted as an escape. (^) Undoubtedly some ideals are vicious and some friends are (^) partners in crime-this can be true of either the (^) government, the (^) opposition, or both. (^) Nevertheless, a (^) betrayal
is no escape for a dedicated member^ of^ either a^ government or its op- position, who cannot collaborate without denying his or her highest values.
- Amnesty International, i66. I4. Defenders of privilege customarily portray themselves as defenders of civilization against the vilest barbarians. (^) Self-deception sometimes (^) further smooths the way to treating whoever are the current enemies as (^) beneath con-
I36 (^) Philosophy & Public (^) Affairs
For (^) any genuine escape must be something better than settling for the (^) lesser of two evils. One can always try to minimize one's losses- even in dilemmas from which there is no real escape. But if accepting the lesser of two evils always counted as an escape, there would (^) be no situations from which there was no escape, except perhaps (^) those in which all alternatives happened to be (^) equally evil. On such a loose notion of escape, all conscripts would (^) become volunteers, since they could always desert. And all assaults containing any alternatives would then be acceptable. An alternative which is legitimately to count as an escape must not only be preferable but also itself satisfy some minimum standard of moral acceptability. A denial of one's self does not count. Therefore, on the whole, the apparent possibility of escape through compliance tends to melt away upon examination. The (^) ready collab- orator and the innocent (^) bystander have some (^) hope of (^) an acceptable escape, but only provided that the torturers both (a) are persuaded that the victim has kept his or her part of the bargain by telling all there is to tell and (b) choose to keep their side of the bargain in a situation in which agreements cannot be enforced upon them (^) and they have nothing to lose by continuing the torture if (^) they please. If one is treated as if one is a dedicated (^) enemy, as seems (^) likely to be (^) the standard (^) procedure, the fact that one (^) actually belongs in (^) another category has no effect. On the other hand, the dedicated enemies of the torturers, who presumably tend to know more and (^) consequently are the (^) primary intended (^) targets of the (^) torture, are (^) provided with nothing which^ can^ be^ considered^ an^ escape and^ can^ only protect them-
tempt and certainly unworthy of equal respect as human (^) beings. Consequently, I am reluctant to concede, even as a limiting case, that there are (^) probably rare individuals so wicked as to lack (^) integrity, or (^) anyway to lack (^) any integrity worthy of respect. But, what^ sort^ of^ integrity could^ one^ have^ violated^ by torturing Hitler? Any very slight qualification here^ must^ not, however, be taken as a flinging wide open of the doors. To be beyond the pale in the relevant respect must involve far more than simply serving values which the torturers find abhorrent. Otherwise, license has been granted (^) simply to torture whoever are (^) one's greatest enemies-the only victims^ very many torturers^ would want in any case. Un- fortunately, I cannot see a way to delimit those who are genuinely beyond the pale which does not beg for^ abuse.
138 Philosophy & Public Affairs
not become a standard practice of government for an indefinite dura- tion. And so on. But is there any supremely important end to which terroristic tor- ture could be the least harmful means? Could terroristic torture be employed for a brief interlude and then outlawed? Consider what would be involved in answering the latter question. A government could, it might seem, terrorize until the terror had accomplished its purpose and then suspend the terror. There are few, if any, clear cases of a regime's voluntarily renouncing terror after having created, through terror, a^ situation^ in^ which^ terror^ was^ no^ longer needed.^ And there is considerable evidence^ of^ the^ improbability of^ this^ sequence. Terroristic torture tends to become, according to^ Amnesty Interna- tional, "administrative practice": a^ routine^ procedure institutionalized into the method of governing.15 Some^ bureaus^ collect^ taxes, other bureaus conduct torture. First a suspect is^ arrested, next he or^ she is tortured. Torture gains the momentum of an ingrained element of a standard operating procedure. Several factors appear to point in the direction of permanence. From the (^) perspective of the victims, even where the population does
I5. I am assuming the unrestrained character^ of^ terroristic^ torture as it is actually practiced. Besides the general study by Amnesty International cited above and below, Amnesty International regularly issues studies of individual countries. Of particular interest, perhaps, is: Report on Allegations of Torture in Brazil, 3d ed. (London: Amnesty International (^) Publications, I976). The Com- mittee on International Relations of the United States House of (^) Representatives has published during 1975-1977 extensive (^) hearings on torture in dozens of countries. And other nongovernmental organizations, such as the (^) International Commission of^ Jurists and^ the^ International^ League for^ Human^ Rights, have published careful^ accounts^ of^ the^ nature^ of^ the^ torture^ practiced in various particular countries.^ I^ believe^ that^ the^ category of^ terroristic^ torture used in this article is^ an accurate reflection^ of^ a^ very high proportion of the actual cases of contemporary torture. It would be tedious^ to document this here, but see, for example, Amnesty International, pp. 21, 26, 103, I99. Nevertheless, it can be granted that terroristic torture is not (^) necessarily un- restrained. It is conceivable for torture to fail to be constrained (^) by the responses of its victim^ but^ to^ be^ subject to^ other^ constraints:^ to^ use^ brutality of only a certain degree, to conduct torture of unlimited (or limited) brutality but for only a limited time, to select victims who "deserve" it (compare (^) note ii), etc. I (^) have not discussed such a (^) category of "constrained (^) terroristic torture" because I believe it to be empty-for very good psychological and political reasons. On the methodological question (^) here, see the (^) concluding paragraphs of this article.
I39 Torture
not initially feel exploited, terror^ is^ very^ unsuitable^ to^ the^ generation of loyalty. This would add to^ the^ difficulty^ of^ any^ transition^ away^ from reliance on terror. Where the population does^ feel^ exploited^ even^ be- fore the torture begins, the sense of outrage (which is certainly ration- ally justified toward the choice of victims, as we have seen) could often prove stronger than the fear of suffering. Tragically, any^ unlike- lihood that the terroristic torture would "work"would almost guaran-
tee that it would continue^ to^ be^ used.^ From^ the^ perspective^ of^ the torturers, it is rare for^ any entrenched^ bureau^ to^ choose^ to^ eliminate itself rather than to try to^ prove^ its^ essential^ value^ and^ the^ need^ for^ its own expansion. This is especially likely^ if^ the^ members^ of^ the^ opera- tion are either thoroughly cynical or^ thoroughly^ sincere^ in^ their^ con- viction that they are protecting "national^ security"^ or^ some^ other^ value taken to be supremely important. The greater burden^ of^ proof^ rests, I would think, on anyone who believes that controllable terroristic torture is possible. Rousseau says at^ one^ point^ that^ pure^ democracy^ is^ a^ system^ of government suitable^ only^ for^ angels-ordinary^ mortals^ cannot^ handle it. If Rousseau's assumption^ is^ that^ principles^ for^ human^ beings^ can- not ignore the limits^ of^ the^ capacity^ of^ human^ beings,^ he^ is^ surely right. (This would mean^ that^ political^ philosophy^ often^ cannot^ be entirely nonempirical.) As devilish as^ terroristic^ torture^ is,^ in^ a^ sense it too may be a technique only for^ angels: perhaps only angels^ could use it within the only constraints which would^ make^ it^ permissible
and, then, lay it^ aside.^ The^ partial^ list^ of^ criteria^ for^ the^ acceptable use of^ terroristic^ torture^ sketched^ above,^ in^ combination^ with^ strong evidence of^ the^ uncontrollability of^ terroristic^ torture,^ would^ come^ as close to a reductio ad^ absurdum^ as^ one^ could^ hope^ to^ produce^ in political philosophy. Observance^ of^ merely^ the^ constraints^ listed^ would require a degree of^ self-control^ and^ self-restraint,^ individual^ and
bureaucratic, which^ might^ turn^ out^ to^ be^ saintly.^ If^ so,^ terroristic torture would have^ been^ shown^ to^ be^ justifiable^ only^ if^ it^ could^ be kept within constraints^ within^ which^ it^ could^ almost^ certainly^ not^ be kept. But if the final^ objection against terroristic^ torture^ turned^ out^ to^ be empirical evidence that^ it^ is^ probably uncontrollable,^ would^ not^ the philosophical arguments themselves^ turn^ out^ to^ have^ been^ irrelevant?
14I Torture
being tortured because^ of^ profoundly^ held^ convictions,^ the^ "escape" would normally be a violation of^ integrity. As with terroristic torture, any^ complete^ argument^ for^ permitting instances of interrogational torture would^ have^ to^ include^ a^ full^ speci- fication of all necessary conditions of a permissible^ instance,^ such^ as its serving a supremely important purpose (with criteria^ of^ impor- tance), its being the least harmful means to that goal, its having a clearly defined^ and^ reachable^ endpoint,^ and^ so^ on.^ This^ would^ not^ be a simple matter. Also^ as^ in^ the^ case^ of^ terroristic^ torture,^ a^ consider- able danger exists that whatever^ necessary^ conditions^ were^ specified, any practice of torture once^ set^ in^ motion^ would^ gain^ enough^ momen- tum to burst any bonds and^ become^ a^ standard^ operating^ procedure. Torture is the ultimate shortcut.^ If^ it^ were^ ever^ permitted^ under^ any conditions, the temptation to^ use^ it^ increasingly^ would^ be^ very^ strong. Nevertheless, it cannot be denied that^ there^ are^ imaginable^ cases^ in which the harm that could be prevented by a rare instance^ of^ pure interrogational torture would be so enormous as^ to outweigh^ the cruelty of the torture itself and, possibly, the enormous potential harm which would result^ if^ what^ was^ intended^ to^ be^ a^ rare^ instance^ was actually the^ breaching^ of^ the^ dam^ which^ would^ lead^ to^ a^ torrent^ of torture. There^ is^ a^ standard^ philosopher's^ example^ which^ someone always invokes: suppose a^ fanatic,^ perfectly^ willing^ to^ die^ rather^ than collaborate in the thwarting of^ his^ own^ scheme,^ has^ set^ a^ hidden nuclear device to explode in the heart of^ Paris.^ There^ is^ no^ time^ to evacuate the innocent people or even the movable art treasures-the only hope of^ preventing^ tragedy^ is^ to^ torture^ the^ perpetrator,^ find^ the device, and^ deactivate^ it. I can see no^ way to^ deny^ the^ permissibility^ of^ torture^ in^ a^ case^ just like this. To allow the^ destruction^ of^ much^ of^ a^ great^ city^ and^ many of its people would be almost^ as^ wicked^ as^ purposely^ to^ destroy^ it,^ as the Nazis did to London and Warsaw, and^ the^ Allies^ did^ to^ Dresden and (^) Tokyo, during World War II. But there is a saying in jurispru- dence that^ hard^ cases^ make^ bad^ law,^ and^ there^ might^ well^ be^ one^ in philosophy that^ artificial^ cases^ make^ bad^ ethics.^ If^ the^ example^ is made sufficiently extraordinary,^ the^ conclusion^ that^ the^ torture^ is permissible is^ secure.^ But^ one^ cannot^ easily^ draw^ conclusions^ for ordinary cases from^ extraordinary ones, and^ as^ the^ situations^ de-
I42 Philosophy & Public Affairs
scribed become more likely, the conclusion that the torture is permis- sible becomes more debatable. Notice how unlike the circumstances of an actual choice about torture the philosopher's example^ is.^ The^ proposed^ victim^ of^ our^ tor- ture is not someone we suspect of planting the device: he is the per- petrator. He is not some^ pitiful^ psychotic^ making^ one^ last^ play^ for attention: he did plant the device. The wiring is not backwards, the mechanism is not jammed: the device will destroy the city if not deactivated. Much more important from the perspective of whether general con- clusions applicable to ordinary cases can be drawn are the background conditions that tend to be assumed. The torture will not be conducted in the basement of a small-town jail in the provinces by local thugs popping pills; the prime minister and chief justice are being kept
informed; and a priest and a doctor^ are^ present.^ The^ victim^ will^ not^ be raped or forced to eat excrement and will not^ collapse^ with^ a^ heart attack or become deranged before talking; while avoiding irreparable damage, the antiseptic pain will carefully be increased only up to the point at which the necessary information is divulged, and the doctor
will then^ immediately administer^ an^ antibiotic^ and^ a^ tranquilizer.^ The torture is purely interrogational. Most important, such^ incidents^ do^ not^ continue^ to^ happen.^ There are not so many people with grievances against this^ government that the torture is becoming necessary more often, and^ in^ the^ smaller cities, and for slightly lesser threats, and with a little less care, and so on. Any judgment that torture could be sanctioned in an isolated case
without seriously weakening existing inhibitions^ against^ the^ more general use^ of^ torture^ rests^ on^ empirical hypotheses about^ the^ psychol-
I7. For a realistic account of the effects of torture, see Evidence of Torture: Studies by the Amnesty International^ Danish^ Medical^ Group^ (London:^ Amnesty International Publications, I977). Note in^ particular: "Undoubtedly^ the^ worst sequelae of torture were psychological and^ neurological" (p. I2).^ For^ suggestions about medical ethics for physicians attending persons being tortured, see "Declaration of Tokyo: Guidelines for Medical Doctors Concerning Torture," in United Nations, General Assembly, Note by the Secretary-General, Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in relation to Detention and Imprisonment (UN Document A/3I/234, 6 October I976, 3Ist Session), Annex^ II.
