Henry Shue on Torture

2006-05-03

in Bombs and rockets, Politics

Bike and coffee cup

Henry Shue’s presentation to the Strategic Studies Group tonight ended up being much more challenging than I expected. The topic was torture and “why no middle way is possible.” That is to say, something that I profoundly agree with. That said, I found his justification to be very problematic.

He began by asserting that torture is obviously immoral and illegal – a position that I do not contest, though we will come back to it. From there, he argued prudentially that states like the US and Britain mustn’t engage in torture for a number of reasons. The first set have to do with how there’s no guarantee the person you torture will know anything, that they might not tell you anyhow, and that the idealized case of the terrorist revealing the location of the hidden nuclear weapon under torture is extremely unlikely to ever transpire. These are fairly standard arguments that deal with the efficacy of torture as an instrument of achieving aims, rather than its acceptability.

His next batch of arguments had to do with the social basis of torture: namely, that to tolerate torture is to tolerate the existence of torturers in society. He argued that some minimal organization of torturers is necessary and that such an organization fundamentally corrupts the society around it. After his talk, I asked him a question about this. Specifically, I asked whether the fact that torturers are readily available around the world for those willing to import them or export prisoners to them changes this moral balance. A state like the United States could easily gain the ‘benefits’ of torture, without risking whatever dangers exist from a domestic torture agency.

His response largely brought us back to a muddle that is at the heart of this. I believe powerfully that torture is an abhorrent act: one that cannot be justified as a practice, even if it was likely to save many lives. This is an easy position to defend if you really believe in some kind of divine or natural justice. If, however, you believe that all the justice out there is what we as people create in the world around us, you are in a really tricky spot. Clearly, saving some huge number of lives must be balanced against the cost of destroying or mangling a smaller number: even if those people turn out to be innocent.

At the heart of things, I can’t come up with a reason for forbidding torture that is somehow firmly rooted to a real moral tapestry that all people are obviously attached to. That makes dealing with the prospect of torture in the ideal case extremely difficult.

My solution, for the moment, as in many other contentious matters is to step back from the greatest controversy and pick low hanging fruit. Even if we allow the possibility that it’s just intuitive revulsion that is the final basis for the understanding of torture as completely unallowable, we can make arguments about how we should operate to reduce the occurrence of torture as something that happens out in the world. This is especially feasible when it comes to states like America that have values fundamentally opposed to such obscene violations of human beings. It’s easier to accuse someone of violating their own moral code than it is to assert some everlasting external morality. Since I don’t feel capable of divining such a framework, but I am nonetheless confronted with irrefutable evidence of astonishing injustice in the world, the best answer seems to be to just act on the basis of a self-aware, pluralistic, and pragmatic ad hoc morality, rather than remain inactive while something terrible continues.

[Update: 21 May 2013] See also: Maureen Ramsay on torture

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{ 14 comments… read them below or add one }

Ian TG May 3, 2006 at 5:01 am

Did anyone see the article in the NY Review – months ago – where a writer recalled one of the most effective USAF interrogators of WWII? He got information by convincing captives that he was their friend, and it would be better to talk to him than… Now it is true that most of those with whom he came into contact were officers in the Luftwaffe. Whether this would work with others from a vastly different culture from their questioners is another matter. One is glad to note that the ghastly notion of “torture warrants” proposed by Alan Derchowitz (sp?) seems to have died the death, or am I just not seeing what I don’t want to see?

Tristan Laing May 3, 2006 at 7:59 am

It seems the basic issue you’re running up against is nothing new. Kant’s project was largely to provide a new basis for morality after rational knowledge of God was no longer possible. Nietzsche worked from the notion that a belief in God is no longer possible, and by that he meant something larger – that any “eternal framework” which would ground morality in the super-sensible is no longer believed to be possible.

As we come to view the principals in the world are simply what we human make of it, or as you put it, when “you believe that all the justice out there is what we as people create in the world around us”, the world becomes something for us to order as it best suits us. The world has become value, has become something from which we can evolve into an ever more powerful and richer band of humans. But this is not the rejection or surpassing of those modes of thought which we now call “divination” or “rationally grounded in the super-sensible”. Rather, we remain entirely defined by those modes of thought employed by thinkers who had recourse to the divine or the super-sensible, and yet without recourse to apriori principals the morality of Plato or Kant which rejects “gut feelings” and recommends instead the rationaly consistent universalists version of the Golden Rule can become the logic of torturers. (Once feeling is banished, all the morality in rational ethics lies in its relativly weak a priori principals which, once demolished, lays the groundwork for any ethics of totalitarianism).

So, I think you’re right on this one. Self-aware, pluralistic, pragmatic ad-hoc morality might be the best weapon against universalistic uber-rational logics which subvert the basic human capacities out of which our ability to act morally came from in the first place.

Tristan Laing May 3, 2006 at 8:07 am

Kate has pointed something else out to me.

Torture is a test case. Remember the axe-murderer and the little girl test case for Kant? You can’t lie to the axe murderer, so Kant’s wrong. You can’t condemn torture, so your system is wrong. If the “system” isn’t just one perticular metaphysics but is instead our rejection of the super-sensible, then that’s what it condemns.

But,

Going back to religion to get the certainty, that is the religion which will justify torture. Because that is the religion which exists after any possible religion has ceased to exist. And that’s Bush telling people that everything is fine.

Milan May 3, 2006 at 10:34 am

Interesting comments, all. I think part of the difficulty derives from how many of our moral precepts have a cosmopolitan form, but the bulk of societal decision-making is applied in a greatly differentiated fashion to citizens and non-citizens. The fact that we simply can’t apply morality directly around the world creates the trouble of ‘importing’ and ‘exporting’ torturers, as a way of getting around Shue’s aversion to having torturers in your society. Given that such people will largely exist whether western governments call upon them or not, it weakens his prudential case quite a bit, though not necessarily his moral case.

In the end, all of his practical considerations can be softened with respect to the probable harm caused by not torturing a particular individual. I think this derives partly from a muddle between ideal theory, in which we can contemplate things like certainty that we have the right person, and moral argument meant to address the nature of things as they are taking place now. Such practical arguments may serve the first cause well, but the second rather less well.

@Ian,

The implausibility of American interrogators befriending their interrogation subjects is, I imagine, partly reflective of one of the huge strategic failings of the American military. While the intelligent course would be to get as many people who know Arabic and local customs and idioms as possible, it seems that no adequate effort has been made to do so. That may because they have been unable to win the hearts and minds of the kind of Americans who offer them the best chance of winning hearts and minds in the region.

@Tristan,

Doesn’t it seem like “pluralistic, pragmatic ad-hoc morality” is, to an enormous extent, quite arbitrary? If we’re just wandering along, on the basis of the best moral code we can cobble together, what is the basis upon which we can assert it forcefully?

Milan May 3, 2006 at 11:03 am

Some relevant links:

American Presidential statement (30 December 2005) asserting the authority to authorize torture in spite of the ‘McCain Amendment’

Bush Administration memos

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Sussman, David. “What’s Wrong with Torture?” Philosophy and Public Affairs, vol. 33, no. 1 (Winter 2005), pp. 1-33 (Full text available to Oxford students via link)

Tristan Laing May 3, 2006 at 7:17 pm

@Ian’s comment @ Tristan

It is not arbitrary because it comes directly from human moral intuition. Whenever moral intuition is codified into a universalistic framework it becomes an object of scrutiny, and the irrational bits (namely, the intuitive bits that motivateed the framework to exist at all) come under attack, leaving the groundwork for a totalitarian ethics. The “force” that you speak of is the same force that allows 6 million jews to be exterminated. We can never forget the holocaust precisely because it proves that our moral intuitions can be disposed of through universalisms. The Catholic sanction of the holocaust proves that the Gods have fled.

Milan May 3, 2006 at 7:32 pm

Tristan,

Why is my revulsion to torture valid, but someone else’s revulsion to homosexuality is invalid? If it’s just intuition that underlies morality, how can we distinguish?

Milan May 7, 2006 at 10:53 pm

This is probably just window-dressing, but it strikes me as good news:

President Bush says in the interview with ARD recorded last week: “Of course Guantanamo is a delicate issue for people. I would like to close the camp and put the prisoners on trial.” (Source: BBC)

Milan May 14, 2007 at 5:35 pm

On torture, see also this post on Antonia’s blog.

Anon November 13, 2007 at 9:58 am

Torture widespread in Afghanistan, Amnesty says
NATO troops urged to not hand over prisoners
Peter Goodspeed, National Post
Published: Tuesday, November 13, 2007

Reports of torture, ill-treatment and arbitrary arrest are so widespread in detention centres run by Afghanistan’s National Directorate of Security that Amnesty International wants NATO troops in Afghanistan to stop handing prisoners over to authorities there.

. September 1, 2008 at 3:19 am

Cheney’s Law

For three decades Vice President Dick Cheney conducted a secretive, behind-closed-doors campaign to give the president virtually unlimited wartime power. Finally, in the aftermath of 9/11, the Justice Department and the White House made a number of controversial legal decisions. Orchestrated by Cheney and his lawyer David Addington, the department interpreted executive power in an expansive and extraordinary way, granting President George W. Bush the power to detain, interrogate, torture, wiretap and spy — without congressional approval or judicial review.

Alan March 22, 2012 at 1:35 am

Shue’s presentation merely asserts. It proves nothing. Its logic is not one of “true” or “false” but of things “approaching.” He is vague, sententious, and condemnatory, including of events and policies which, such as the bombings of Dresden, Tokyo, and the atomic sites, and of MAD, which were and are defensible, and indeed are widely defended. Indeed they were and remain national policies of many nations. Shue is also insincere. His arguments would allow torture in some cases, except he is afraid people will go “too far,” although he allows some might not. He would appear to allow empirical proof, indeed require it, but then he forbids the proof that might show him wrong. He, and other contributors, are too quick to condemn morally decent public servants trying to protect their country from real evils. Thus, even Alan Dershowitz (no conservative or reactionary by anyone’s defintions) would allow exceptions to a general rule against torture. Shue has a contrarian, minority, viewpoint, although he asserts (but does not show) that it is the majority, and therefore has a special obligation to prove his points, not merely assert them. He does acknowledge that, in the real world, the principles he says everyone holds are evaded in practice. Likewise, his statements that everyone condemns slavery and that it is always wrong are….assertions, and false. Slavery remains legal and constitutional under the US Constitution (after conviction for crime), and is widely practised in the world today (especially sex slavery, trafficking, and slavery in countries such as the Sudan). President Obama is not the arch-evil President Bush, but even he reserves the right to torture in an appropriate case. The “intuition” to which Shue refers means nothing: one person’s “intuition” is another person’s prejudice. What if I have an “intuition” against abortion or gay rights? Does that make me right or wrong? I find Shue useless in this debate over torture.

Troll March 22, 2012 at 8:18 am

” even Alan Dershowitz (no conservative or reactionary by anyone’s defintions) ”

lolz

. March 23, 2012 at 7:44 am

Google Scholar >> Henry Shue torture

Torture
Henry Shue
Philosophy & Public Affairs
Vol. 7, No. 2 (Winter, 1978), pp. 124-143

37 Case W. Res. J. Int’l L. 231 (2005-2006)
Torture in Dreamland: Disposing of the Ticking Bomb; Shue, Henry

Responses to The Debate on Torture
By Henry Shue and Richard H. Weisberg

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