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Torture & Terrorism
III
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Uwe Steinhoff: “The Case for Dirty Harry and
against Alan Dershowitz”
Steinhoff’s Project
Steinhoff argues:
• Shue’s interpretation of torture as conflicting with Jus in
Bello is wrong-headed;
• Dershowitz’s suggestion of introducing ‘torture warrants’ is
unlikely to bring about better consequences than our
current approach;
• Rather, not legalizing torture seems the best route to
minimizing the use of torture by police and government
officials;
• This being said, torture does seem morally (and probably
legally) justifiable in certain circumstances where the
‘victim’ of torture is morally culpable in the wrong being
committed.
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Torture & Empathy
• Some killings are justified, so why shouldn’t it be justified in
some cases to torture people?
- Certainly, objectively, being killed seems to be worse than
being tortured.
• Emotional reactions to displays of torture (say, in movies)
tend to be extreme.
• The idea that torture is more terrible than killing seems to be
sustained by these.
• However, this fails to have much moral relevance:
- Our emotional reactions to movies scenes involving large
amounts of feces or to cockroaches are similarly more
extreme than to scenes of killing.
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Torture & Empathy (cont’d)
• The reason we don’t react strongly to displays of killing is
that “we simply cannot empathise with the dead.” (340)
• “[O]ur emotional reactions to displays of torture or killing
respectively are distorted by certain limits of empathy.” (340)
- What isn’t distorted is our emotional reaction to the prospect
of our own deaths.
- “Whether killing is worse than torturing, then, should be
measured against the preferences of people facing the
alternatives of torture […] and death – most prefer torture.”
(340)
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Henry Shue
Shue’s argument about combatants and non-combatants is
wrong-headed:
• Shue argues that Jus in Bello is a principled distinction
between combatants and non-combatants to try to make
combat fair:
- Non-combatants are in principle defenseless; combatants
are not.
- Just as this distinction serves as the basis for our approach
to war, it should likewise serve as the basis for our
perspective on torture.
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Henry Shue (cont’d)
• However: Jus in Bello is a principle of proportionality, but
does not rest on this principled distinction between
combatants and non-combatants (i.e. between those capable
of defending themselves, and those not).
• “[T]he prohibition of assaults upon the defenceless is neither
an explicit nor an implicit principle of the laws of war…” (338)
- As such, it serves as a poor grounding for our approach to
torture.
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Henry Shue (cont’d)
• Might we argue that while the enemy soldiers in the shelling
example are defenseless in the present case, they still pose
a threat, and that’s why it’s permissible to kill them (whereas
the terrorist does not, and that’s why it’s not permissible to
torture him)?
- Certainly, it seems, the terrorist in Ticking Time Bomb cases
might be considered to still “pose a threat” – he is
withholding vital information.
- Even moreso, the terrorist in such cases is culpable in the
threat of harm.
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Torture & Culpability
• Doctor & Pacemaker Thought Experiment (341)
- “[I]f one of the two has to die anyway and one has to decide
who it is going to be, then one clearly should […] decide
against the person who has culpably brought about this
situation.” (341)
- It makes no difference if there is only one victim, and not
thousands or millions.
• Dirty Harry Example (342)
- The kidnapper does have rights, but in this circumstance,
these do not include the right not to be tortured.
- “The aggressor does not lose all his rights, but his right to life
weighs less than the innocent defender’s right to life.” (342)
- If someone must be harmed in this case, it seems only right
that the one to be harmed is the one who brought it about that
someone had to be harmed.
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Torture & Culpability (cont’d)
Objections:
• Objection #1: Interrogative torture simply does not work.
- Reply: This much is simply false—sometimes it does work
and the torturer gets the information he wants.
- Even given that it is not completely reliable—is not always
going to bring about the wanted information—it gets it some
of the time, which is always preferable to none of the time.
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Torture & Culpability (cont’d)
Objections:
• Objection #2: You don’t know if you have the right person.
- Reply: There are a number of clear cases where, despite
lacking absolute certainty, it seems appropriate to inflict harm:
 Where an aggressor threatens a harm—even if we can’t
be certain he intends to carry through with the threat
(both in cases of terrorists and muggers).
 Where an individual is a member of the threatening
group—even if that particular individual has made no
attack or overt threat (be it a terrorist organization or a
bloodthirsty mob).
“Being a member of certain groups that collectively
undertake aggressive acts or intentionally pose a threat to
innocent people makes one liable to severe
countermeasures.” (344)
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Torture & Culpability (cont’d)
Objections:
• Objection #3: What about the risk of torturing a completely
innocent person—one who is not at all liable?
- Reply: This risk exists, just as it does in the case of
punishment. But we need to weigh the risk of torturing the
innocent against the risk of letting other innocents die in an
explosion.
 If the odds are high enough, such weighing should justify
(not merely excuse) torture.
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Torture & Culpability (cont’d)
• A moral absolutist position against torture “is a dangerous and
mistaken view.”
• “Consequences count; they cannot simply be ignored for the
benefit of some allegedly absolute rule, especially if they might
be catastrophic. Fiat justitia, pereat mundus [let justice be
done, though the world be destroyed] is an irrational and
immoral maxim.” (346)
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Legalized Torture?
So, if torture can be morally justified in certain circumstances,
should it also be legalized?
• Alan Dershowitz suggests the introduction of legal ‘torture
warrants’ rather than excusing particular cases after-the-fact.
- For Dershowitz, torture warrants represent a ‘principled
break’ to circumvent a slippery slope at the bottom of which
torture becomes widespread.
- Dershowitz argues that introducing torture warrants will
recognize the intertwined values of our society’s security,
our citizens’ civil liberties and human rights, and an open,
accountable system of government, and yet allow for torture
in Ticking Time Bomb cases.
- Dershowitz further argues that legally-mandated torture
warrants will reduce the incidence of torture in general and
unjustified torture in particular.
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Legalized Torture? (cont’d)
Problems:
1) Can Dershowitz apply a similar approach to ‘brutality
warrants’ or ‘prisoner rape warrants’? Introducing a system of
justified brutality seems simply barbaric.
2) Dershowitz bases much of his evidence for the effectiveness
of torture warrants on a study by John Langbein of torture
warrants in England.
• However, Langbein argues that torture was not part of the
judicial system in England (though it was part of the
Continental legal system, where its use was ethically
questionable).
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Legalized Torture? (cont’d)
Problems:
3) Dershowitz doesn’t give us good reason to think that torture
would be less likely under requirement of judicial warrant than
under a total ban.
• Suppose a case where an act of torture seems justifiable to
the official considering it (like a Ticking Time Bomb case).
- Whether under a system of torture warrants (here
assuming the official could not obtain one) or an outright
ban, the official seems just as likely to perform the torture.
The excuse for doing so would be the same.
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Legalized Torture? (cont’d)
Why should we legalize torture?
• Ticking Time Bomb and Dirty Harry cases are extremely rare—
so it seems strange to introduce a system of law to allow for
them.
• “If the stakes are high enough and no other option is available,
police officers or other state agents will probably use torture
even if they face prosecution if caught. […] Besides, if
punished, they might still be allowed the benefit of mitigating
circumstances.” (348)
• Granted that being tortured is not necessarily worse than being
killed or incarcerated, introducing a wider practice of torture
may still be worse than introducing or maintaining a wider
practice of incarceration or killing.
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Legalized Torture? (cont’d)
• Dershowitz’s torture warrants are unlikely to create a
‘principled break’ on the slippery slope.
- “Experience shows that measures introduced against
putative terrorists in alleged conditions of emergency tend to
be doubly extended, namely, beyond the emergency and to
crimes or offences of lesser seriousness. […] Once
advertised as being targeted only against terrorists, [such
measures] can now befall any citizen who gets involved in
criminal procedure.” (350)
- Moreover, with torture justified in certain cases, it seems all
the more likely that lesser forms of brutality will be seen as
justified.
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Legalized Torture? (cont’d)
• Without legal sanction, “Dirty Harry has to justify himself not
only morally but also legally. He might face legal charges, and
that might make him think twice before he tortures someone.
[…] But if law enforcers can resort to torture knowing in
advance that the state is behind them, the worst has to be
expected—on a large and inevitably growing scale.” (351)