HARVARD – GOVT E-1045

Moral Reasoning 22: Justice

Fall 2005 – Professor Michael Sandel

Midterm Paper (due October 25th)

by: Jorge Cortell-Albert

“The Ticking Bomb Terrorist Torture Case”

_Q. Is torture justified as a last resort to prevent an imminent terrorist attack?

Answer with reference to the arguments presented in Alan Dershowitz, “The Case for

Torturing the Ticking Bomb Terrorist,” from Why Terrorism Works, pp. 142-149._

A. Although certain dramatic circumstances (as those described in Dershowitz‘s article) seem to validate the old “the end justifies the means”, to consider torture (even to prevent an imminent terrorist attack, and even as a last resort) would be crossing a boundary that could potentially lead us to much more suffering than the result of the worst terrorist attack.

An analysis of aspects related to this issue will be discussed, mainly those in Bentham‘s “Principle of Utility”, J. S. Mill‘s “Utilitarianism”, Libertarianism (touching on Nozick), and Locke‘s “Second Treatise of Government”, mainly to see this dilemma from different philosophical views discussed in class, and to raise counter arguments for my thesis. Those very same philosophical views will be used to support my argument, in a proof that it is all a matter of interpretation (which is my final conclusion).

Some limit situations could put us in a position where we would have to make the choice between allowing the rules to be broken and our views on an advanced society and its values be bent in order to attain safety, security, or any other “basic need”. As Dershowitz shows, and as we ourselves can imagine, an imminent terrorist attack is a perfectly (and all too real) example, but is not the only one. When can a “state of emergency” be declared? Who should make that decision? What rules and laws are affected by that? It all revolves around the same principles.

From a classic (and basic) utilitarian point of view, it is all a matter of “greater good”. And while many debates have been had (and many are yet to come) about the mere concept of “good”, there is little initial debate about the good that represents to save all those innocent lives and avoid all that suffering that the imminent terrorist attack would bring. So to applying torture to the terrorist in order to save lives seem, at first, fit to Bentham‘s definition of an action conformable to the principle of utility, which he describes as “when the tendency it has to augment the happiness of the community is greater than any it has to diminish it” (Jeremy Bentham, “Of the Principle of Utility” – coursepack, page 8 ). It would even seem to fit John Stuart Mill‘s definition, which varies from Bentham‘s in that it also encompasses (and even places a greater emphasis on) intellectual pleasures (John Stuart Mill “Utilitarianism” – chapter 2).

Yet, how about the negative repercussions of applying torture?

Certainly there must be some, for it is against the law in most civilized countries (although some countries like the USA get around it by some obscure legal maneuvers such as declaring suspected terrorist “prisoners of war”, and keeping them in military bases instead of allowing them to be represented by a lawyer and sending them to jail, and some other countries like Spain, France or Israel, quite simply apply it “outside the legal system”), and we find it contrary to our values.

Torture is an awful weapon of terror and repression used by just about every single dictator in History. Any government that is allowed to use torture will be able to keep its population under such a tight control, that most of the liberties we take for granted (such as freedom of expression, freedom of association, political and religious freedom, etc) disappear as soon as the danger of being subjected to torture is clear and present. What sets torture appart from other punishments is that it is usually not used as a punishment, but rather as a means to an end, which is exactly the case we are contemplating here.

Who is to determine where the line is drawn? Under what principle or by which method? Applying who‘s values? The basic underlying issues these questions raise are not that different from those raised by Calabresi and Bobbit in “The Tragic Dilemma” (coursepack pages 53-56) when talking about the forced military draft. In the end it is about where does individual freedom end and how far does the government‘s power reach?

John Locke‘s inalienable rights (life, liberty, and property), central to the ideology of Liberalism, assert that we all have those rights. Torture would basically attempt against life and liberty. And in this case the terrorist has not been tried yet, so he has not been declared guilty by a Court of Law, and therefore, a punishment is being applied on a man by a government beyond the scope of the law. According to Locke‘s “Second Treatise of Government” the people may remove a regime that violates the legitimacy of government (based on, among other things, abiding to the law). So a liberalist view of this dilemma would render impossible to apply torture on the terrorist if it was against the current laws, for that itself would call for the removal of the government that authorised that breach of the law.

Yet a different view from a liberalist point of view would be that the terrorist is breaching the victim‘s natural rights to life and liberty (and most likely property in the case of an attack with a bomb). But Locke‘s liberalism always resorts to a legitimate government for drafting, approving and applying laws, and never mentions cases in which action should (or should not) be taken beyond the scope of the law other than in the case of a government loosing its legitimacy. A minimal state such as the one Robert Nozick defends in “Distributive Justice”, Chapter 7 of “Anarchy, State, and Utopia” coursepack pages 27-41 would also be void of power to act beyond the approved laws and one of the very few proposed objectives (such as the protection against force). In any case, Nozik‘s view, similar to Kant‘s, of humans as rational beings as opposed to a means to an end (he mentions it in regards to redistribution), would oppose the use of torture in order to achieve any means.

So, as we have seen raised over and over again, the discussion shifts from the initial and basic Utilitarian view of “yes, torture should be applied because it would save lives” to a more profound “but, if we apply torture, which repercussions would it have?”

Applying torture (without a judge‘s order) would mean, at least, the following:

• Breaking the law and international treaties

• Seeing a human being as a means to an end

• Giving the Executive branch of government a power that should belong (in any case) to the Judiciary

• Breaching an individual‘s rights

• Setting a precedent

• Shifting Government‘s source of power from “the people” to… ?

• Abiding to some moral values and principles that have not been those who have been upheld by our society in recent years

• Loosing legitimacy to cry foul when other governments do the same (thus legitimizing torture in an international scale)

• Lack of rules and principles upon which torture could be applied, thus leaving a possibility for an ever wider interpretation to occasional restrictions

The enormous implications derived from the decision of applying torture are obvious. Things would change from both legal and ethical points of view, which would affect Government and its legitimacy, international relations, and society and culture in general (our values would have to be revisited, affecting such diverse aspects as religion, beliefs, morality, education, etc).

So, from a basic utilitarian point of view, we can easily see that the “utility” or end result of the decision of not applying torture is easy to calculate, and while horrendous and terrifying, it would end in the limited suffering and loss of X number of people, while the decision of applying torture would have the above mentioned wide spread consequences, which are by no means easy to calculate, but like Pandora‘s box, could have such deep consequences that it would easily change our own definition of society, law, and values, thus changing our very nature, ourselves.

Seen in this light, a deep utilitarian analysis would then point to the contrary solution that seems to point at first: it would cause MORE (taking into account a calculation definition as proposed by Mills rather than Bentham) pain and suffering in the end to apply torture to one single terrorist (for the implications and meaning this act would have) than not applying it.

I can imagine an objection being raised to this logic: “but if no torture is applied, then the terrorist attack would take place, so they would ‘win‘ and we can not let them ‘win‘ because then they would rule us all”.

This is easily countered by dwelling into the specific circumstances of this scenario (although keep in mind that the above implications of the decision of applying torture still hold regardless of it being carried out to prevent terrorism, to silence political activist, or to avoid a worker‘s union strike).

Terrorism is, by nature, fragmented and isolated. As a matter of fact, in Chapter 1 of Noam Chomsky‘s “Essential Readings” several proofs and documents support the thesis that the largest terrorist organisations in the world are some Western Countries‘ Governments (the USA and UK leading other countries such as Israel). So, appart from Government Sponsored terrorist attacks, all other terrorist attacks, no matter how big and devastating (unluckily citizens in Madrid, New York, London, Baghdad, or Palestine know what devastating truly means) are isolated and fragmented. Knowing that does not help alleviate the pain and suffering of the victims (I lost several friends in a recent terrorist attack, and I have had to comfort their families, I should know), but this is not about individuals seeking revenge, or about saving an individual life, or five, or five thousand. This is about morals, principles, and the repercussions of an unlawful practice and decision.

So, with that in mind, stating that not preventing a terrorist attack means “loosing” to the terrorist is quite ridiculous. Actually, it might very well be the other way around. What do most terrorist attacks pursue? Generally speaking (because there are many different motivations -which does not and will never mean justifications-) terrorist attacks seek the destabilization of some established order. Most likely the destabilization of a government, its laws, or even its society.

By applying torture we might “win” one battle (preventing one terrorist attack) but we would loose the war, because it would have such a profound impact on our society that it would most likely destabilize it. It would lead to protest, debate, division, and maybe abuse and fighting. Just what the terrorist wanted. And if that seems far-fetched, let‘s imagine three (of only three) possibilities arising from the application of torture:

• It would not be applied again, or only in exceptional, unregulated cases

• It would be applied but regulated by some new law

• It would become a widespread practice, not restricted to government, but also applied by security guards at shopping malls, high school principals (let‘s hope that it would at least be kept out of Universities, though 😉 ), etc.

In the first case it would be such an obvious injustice that it would affect the legitimacy of Government and the Judiciary system.

The second case would mean a profound change in our legal and values‘ system. Until now we pride ourselves in the upholding of Human Rights, and in defending individual rights (such as those proposed by Locke as “Natural Rights”). But this case would mean having to change all that without proper debate or citizen participation in the decision, which goes straight against democracy quite simply because current members of Congress would not uphold a decision like that (if they did it would quite obviously be against the will of most americans, because a Washington Post/ABC News poll published on May 28, 2004 showed that 63% of Americans think the use of torture is never acceptable). As a matter of fact on October 5th, 2005 the US Senate voted 90-9 against torturing presumed terrorist under arrest and US custody in Guantanamo Bay and the Middle East (as reported by the Washington Post the next day).

And the third case, well, some people even laugh at that possibility, but a quick look at history books and media that cover something else than CNN Headline News will show how torture has been and is being widespread used by many governments throughout the world. It is too much of a plausible threat which a US President like George W. Bush (I base this assertion on his record of infringing international laws and allowing and signing orders that go against US laws and that limit citizen‘s rights all based on a “war on terror” that is all too convenient for his political interests) might be tempted to abuse.

What is even more troubling is that Pandora‘s box has already been opened. Far from mainland, and as hidden and surrounded by as much secrecy as possible, but it has been opened. Detailed in a Human Right‘s Watch report (https://hrw.org/reports/2004/usa0604/2.htm) we can see top members of President Bush‘s cabinet (such as Rumsfeld) devising methods to keep torture in place (at least for interrogations) while avoiding international court of law‘s prosecution.

My final argument is that the lack of terrible immediate consequences should not lead us to think that we are safe from paying a price for our actions. Specially when analyzing a dilemma from an abstract philosophical point of view. Absolute detachment form reality does no good to a healthy debate. But just because something is not apparent to the naked eye does not mean it does not exist (today or in the future).

Therefore I truly believe (and hope to have sufficiently supported) that the application of torture as an interrogation method in the case of an imminent terrorist attack is wrong and dangerous wether it is analyzed from an Utilitarian point of view, or taken into consideration from a Liberal theory of government, being its implications far more deep and negative to our society than the effect of even the most devastating terrorist attack.

(Update.- grade B-, comments upon request).