Last night I listened to a CSPAN presentation by Jan Goldman, author of “The Ethics of Spying.”
The presentation began with a description of the paradigm case used to examine the moral legitimacy of torture; “the ticking bomb scenario”. A bomb has been placed in a school, and you have a person in custody who knows where the bomb is and how to disarm it. Do you torture this person to get this information?
The Effectiveness Argument
Mr. Goldman reported that, among laymen, the standard response is to do “whatever it takes” to get the information. However, Goldman says, “The overwhelming response I get from professional interrogators is that extreme methods of acquiring information does not work. You will get information, but you will not get information that may be reliable or valid.”
I want to point out that this response from professional interrogators says nothing about the ethics of torture. Claiming that an action will not produce the desired results is not the same as saying that it is wrong.
Imagine somebody coming to you claiming that he wants some money and he plans on robbing a local convenience store. Perhaps you can talk him out of it by saying that he will probably get caught and that convenience stores do not have much money. However, this is not the same as arguing that robbing convenience stores is wrong. The practical argument implies that it is permissible to rob the convenience store if one can get away with it and the store has a lot of money. The moral argument would imply that it would still be wrong to rob the liquor store even if one could get away with it and the store had a lot of money.
Similarly, if the argument against torture is, “it does not work,” this is not an argument that says that torture is wrong. This argument still implies that it would be permissible to torture if torture was an effective means of getting quantities of useful information.
The ineffectiveness of torture tells us as little about the wrongness of torture as the ineffectiveness of robbing convenience stores tells us about the wrongness of robbing convenience stores.
The Rehabilitation and Alliance Arguments
We can get better and more reliable information from a prisoner by converting that prisoner than we can by torturing him. This can be called a ‘rehabilitation’ argument against torture. Torture a prisoner, and the prisoner will still provide you with as little information as possible with that information being as unreliable as possible. It can easily include fictions meant to muddy the water.
However, convince the prisoner that you should win and that he should become a partner in that victory, and you are going to get a lot of information that is much more highly accurate.
I am not saying that this is easy. Certainly, torture is the easier option. However, this is a question of measuring the ease of the action with the quality of the results (the value of the return on investment).
The main points of the rehabilitation argument can be applied to people who are not directly involved in the conflict – at least not yet. From this, we get an “Alliance Argument.”
One of the best sources of useful information comes from the eyes and ears of ordinary people. The recent CBS News show, “Five Years Post-9/11: How Safe Are We?” mentions the case of a Muslim who found out about a fellow mosque member planning to detonate a bomb in New York. He reported this to authorities. He also volunteers to help the authorities find out more about the plot. This illustrates the point that the greater the number of people in the world who are loyal to the American cause and willing to put effort into ensuring its success, the better off we are.
It is possible to criticize Bush’s policies in part on the ground that it has weakened support for the American cause. This, in turn, is likely to have cost us information that we might have otherwise gotten through these sources.
Consider, for example, the Bush Administration’s policy on torture. One of the effects of this policy is that those have an aversion to torture and a dislike of those countries and leaders who practice and promote the use of torture have less of an incentive to being on our side in this conflict.
The Bush Administration’s policy on secret prisons alienates those who have an aversion to secret prisons and an affection for the idea of fair trials. Its policy on blowing up houses where families are gathered in the hopes of killing a suspected terrorist that might be present alienates those who have an aversion to blowing up civilians.
People in the Bush Administration have been claiming recently that they have gotten useful information from these prisoners by their use of “aggressive interrogation techniques” (a.k.a. torture). They are asking for legislation that will permit them to continue the practice.
However, the quality of whatever information they did receive has to be weighed against the quality that the Bush Administration did not receive from people who have an aversion and a contempt for those who endorse doctrines of torture, unjust imprisonment, and insufficient regard for protecting civilian lives.
Once again, it is important to add that the information that we get through torture is from people whose interest is in giving us as little information as possible and information that is as unreliable as possible. The information we get from those who view us as people who deserve to win this conflict because of our moral character is as much information as possible and as reliable as possible.
How many informants are we turning away because they are disgusted by the moral tone that this President and his administration are setting?
At this point, I must add that this argument does not yet say anything about the wrongness of torture. The argument is still only talking about effects. So far, all I have said is that not torturing will generate the support (and get information from) those with an aversion to torture. But what is it that makes aversion to torture right? Racist attitudes will foster the cooperation of racists. A simple bribe will generate the cooperation of the corrupt. The fact that an act generates cooperation from some segment of people does not make the act right. We are still in need of a moral argument.
The Ethics of Spying
To get an actual argument on the ethics of spying, I would like to turn to the desire-utilitarian format that is the foundation of all of these posts.
In an example I have used elsewhere, morality is concerned with finding ways to keep people from taking money out of your purse or wallet (or bank account) – or robbing convenience stores, or committing rape or murder – from doing so even when they can profit from it and they can get away with it. Desire utilitarianism advocates doing this by giving a people aversions to these types of acts. An aversion to taking money would work like an aversion to the pain. The aversion to pain keeps a person from putting their hand in a hot fire even in private. An aversion to taking the property of others, rape, torture, and assassination prevents a person from engaging in these acts even when it would otherwise be profitable for them to do so.
Now, let me combine this with the point made in the previous section – that our actions will cause those with desires compatible with our actions to support us. Now, we are not only going to ask whether our actions will buy us support from a particular group of people. We are also going to ask whether those whose support we gain (or lose) are the type of people we are better off with (or without).
The question now becomes something more than, “Will our policy solicit the cooperation of others?” This is not a moral question – this is merely a prudential question. Our question now, on a desire-utilitarianism model, is, “Are we soliciting the cooperation of the type of people that it would be wise to have as members of one’s community?”
I mentioned above that the Bush Administration’s policy on torture alienates those who have an aversion to torture. Here, I add the fact that we have a lot of very good reasons for promoting a community of people adverse to torture. However, we cannot promote an aversion to torture while promoting a government that advocates its use. These two goals are incompatible. We promote an aversion to torture by promoting a government that expresses an aversion to torture.
The same argument applies to other Bush Administration policies – indefinite confinement without a fair trial, rendition, arbitrary and unchecked executive power. We are better off as a community if our neighbors have an aversion to injustice, rendition, and arbitrary unchecked power. We are safer surrounded by these type of people than we are surrounded by a community that values injustice, rendition, and unchecked power. To promote this type of community, we need leaders that express an aversion to injustice, rendition, and arbitrary unchecked power. We are not getting any benefits from an Administration that expresses a fondness for these qualities.
The Return of the Ticking Bomb
So, what do we do with the ticking bomb scenario?
Actually, my answer is that torture and other extreme questioning techniques should remain illegal. We should be seeking the cooperation of those who share an aversion to these types of actions.
The fact that an act is illegal does not imply that it should never be done. We may set a speed limit on private roads of 55 miles per hour. However, the parent whose child is in shock after being stung by a bee may violate the law to get his child to the hospital. In extraordinary circumstances, an individual weighs aversion to breaking the law with the desire to save his child’s life. In breaking the law, he takes his chances – he risks punishment. It would be absurd to argue for eliminating the speed limit because of the rare situation in which a person may be justified in violating it.
The fact that torture is illegal does not mean that the interrogator, faced with certain knowledge of a bomb and limited time to get this informant to talk, and good reason to believe that torture would be useful in this situation, cannot use torture. It means that he, like the person speeding to get his child to the hospital, has decided that the situation is important enough that he will take his chances with the system. He will suffer the consequences of breaking the law, if it comes to that. We keep the law as an expression of society’s attitudes – that we consider these types of actions to be wrong, and anybody who commits this type of act had better be able to come to us with a very good reason.