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What's Wrong with Torture?

2004; Wiley; Volume: 33; Issue: 1 Linguagem: Inglês

10.1111/j.1088-4963.2005.00023.x

1088-4963

David Sussman,

Global Peace and Security Dynamics

Why is torture morally wrong? This question has been neglected or avoided by recent moral philosophy, in part because torture is by its nature especially difficult to discuss. Torture involves degrees of pain and fear that are often said to be utterly indescribable; indeed, these experiences are sometimes said to destroy in their victims the very hope of any sort of communication or shared experience whatsoever.1 Torture has proved surprisingly difficult to define.2 There is no clear agreement on the distinction between torture, coercion, and manipulation, or whether such techniques as sleep and sensory deprivation, isolation, or prolonged questioning should count as forms of torture.3 In addition, we may be fearful of deriving some sort of perverse titillation from the subject, or of being able to dispassionately contemplate the agonies of real victims of torture. Those who have not suffered torture may well feel it is not their place to offer any very substantive reflections on the practice, leaving the issue to those who unfortunately know what they are talking about. We might also worry that in just raising the question, we inadvertently give aid and comfort to torturers, if only by supplying materials for disingenuous self-justification. On the other hand, if we approach the question of torture's justifiability in good faith, it may seem so easy to answer as to be hardly worth asking. Torture involves the intentional infliction of extreme physical pain or psychological distress on a person, for such ends as inducing the betrayal of some cause or intimate, intimidating actual or potential opponents, or as an exercise of dominance or sadism simply for its own sake. Since at least Beccaria there has been a broad and confident consensus that torture is uniquely “barbaric” and “inhuman”: the most profound violation possible of the dignity of a human being. In philosophical and political discussions, torture is commonly offered as one of the few unproblematic examples of a type of act that is morally impermissible without exception or qualification.4 Yet in the current “war on terrorism,” the thought that torture may be an appropriate means of combating terrorists has emerged in respectable political and legal discussions in the United States and elsewhere.5 We would not hope to justify torture that was meant to terrorize innocent civilians or dehumanize a population pursuant to expulsion or genocide.6 But could we justify the torture of a terrorist in order to find out the location of a bomb he has planted, or of a kidnapper to make him reveal the location of his captive while she might still be alive?7 Here, torture might be understood as the sort of violence that can be permissible as part of the prosecution of a just war or legitimate police action, especially against people who have shown nothing but contempt for the laws of war and the rights of their victims. Nor is it entirely obvious why we should refuse to consider torture as a possible form of punishment, especially when we are willing to allow punishments of lengthy incarceration and perhaps even death. Yet while a convict might reasonably prefer torture to these other punishments, punitive torture remains officially beyond the pale even in an America that countenances the executions of juvenile and mentally retarded offenders. What is it about torture that sets it apart even from killing, maiming, or imprisoning someone, such that the circumstances that might justify inflicting such harms would not even begin to justify torture?8 In this article, I defend the intuition that there is something morally special about torture that distinguishes it from most other kinds of violence, cruelty, or degrading treatment. Torture is all these things, of course, and is morally objectionable simply as such. What I deny, however, is that the wrongness of torture can be fully grasped by understanding it as just an extreme instance of these more general moral categories. I argue that there is a core concept of what constitutes torture that corresponds to a distinctive kind of wrong that is not characteristically found in other forms of extreme violence or coercion, a special type of wrong that may explain why we find torture to be more morally offensive than other ways of inflicting great physical or psychological harm.9 My account is not meant to provide any very immediate way of resolving the “ticking bomb” or “Dirty Harry” dilemmas mentioned above. Instead, I am trying to articulate more clearly the moral structure of these dilemmas and the special reluctance we have to consider torture even in the face of such pressing claims. I do not here contend that torture is categorically wrong, but only that it bears an especially high burden of justification, greater in degree and different in kind from even that of killing.10 Establishing such a special burden of justification may be a necessary step in defending a categorical proscription of torture, but it is not by itself sufficient for such a defense. While not providing any immediate answers, this account will at least give us reason to resist assimilating these dilemmas to the problems posed by other uses of force in war and police action. My approach is broadly Kantian, but I do not construe the wrong of torture as just that of disregarding, thwarting, or undermining the victim's capacities for rational self-governance. Instead, I argue that torture forces its victim into the position of colluding against himself through his own affects and emotions, so that he experiences himself as simultaneously powerless and yet actively complicit in his own violation. So construed, torture turns out to be not just an extreme form of cruelty, but the pre-eminent instance of a kind of forced self-betrayal, more akin to rape than other kinds of violence characteristic of warfare or police action. My discussion focuses on interrogational torture, i.e., torture that involves a protracted process of inflicting or threatening pain in a context of helplessness and dependence, so as to make its victim provide information, confessions, denunciations, and the like. Such torture is prevalent in the world today, and it is the sort of torture that seems most likely to be justifiable in sufficiently dire circumstances and against sufficiently ruthless and culpable foes. I foreground such torture because in it the central idea of a relationship that is not only morally wrong but also morally perverted finds its clearest illustration. Once this idea of a moral perversion is on the table, I turn to the other context where there may sometimes seem to be prima facie grounds for torture: legal punishment. Such torture is also objectionable as a travesty of the most basic practical relations between embodied agents, but the character of this distorted relation will differ in some important respects from that found in other forms of torture. Again, this examination is not intended to provide any immediate answers about whether torture might ultimately be justified in any particular case. Instead, it is meant only to expand our theoretical vocabulary, so that we can start to say what is morally special about torture without making torture so unique as to be beyond profitable philosophical discussion. The United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment defines torture as [a]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.11 At a minimum, torture involves the deliberate infliction of great pain or some other intensely distressing affective state (fear, shame, disgust, and so forth) on an unwilling person for purposes that person does not and could not reasonably be expected to share. While one might accidentally kill or inadvertently maim, one cannot accidentally or inadvertently torture. But there are many ways of deliberately inflicting pain that we would hesitate to call torture. I might punch a stranger in the face, breaking his nose, and then run away. The victim here may experience great pain, but we would not normally say he had been subjected to torture. Two people might simultaneously inflict great pain on each other (e.g., wrestlers each applying submission holds to each other), but we would not normally describe this as torture either. In addition to the intentional infliction of great pain, torture seems to require that its perpetrators and victims be placed in a distinctive kind of social setting and relationship to one another. Victims of torture must be, and must realize themselves to be, completely at the mercy of their tormentors. This condition involves two distinct elements. First, being at another's mercy requires that there be a profoundly asymmetric relation of dependence and vulnerability between the parties. The victim of torture must be unable to shield herself in any significant way, and she must be unable to effectively evade or retaliate against her tormenter. I may intentionally inflict great pain in a fight in order to make my foe do something; I may gouge his eyes in order to get him to stop choking me. Nevertheless, insofar as my opponent is not helpless before me, my eye-gouging is not an instance of torture, even though I am trying to force him to comply with my desires by inflicting pain on him. Police who use tear gas to disperse a crowd are not engaging in torture, regardless of how painful the gas may be. In neither case are the victims forced to be passive before the infliction of suffering, their avenues of response limited to those narrowly defined by their tormentors. Instead, these victims still have it within their power to resist or mitigate the violence done to them: by retreating, devising ways of protecting themselves, or countering their assailants with new threats of their own. In such cases, the attackers are in the position of having to anticipate how their opponents, as free agents, might try to alter or upset the conditions that frame their conflict. In combat, each party recognizes the other to be capable of reshaping the practical task before them in an indefinitely wide variety of ways. In contrast, the torture victim realizes that he has no room to maneuver against his antagonist, no way to fight back or protect himself, and he must realize that his antagonist is aware of this as well. The victim may ultimately comply or not, but he has no prospect of surprising his tormentor in a way that might change the basic shape of the antagonism between them. Second, the torture victim must see herself as being unable to put up any real moral or legal resistance to her tormentor. The victim takes her tormentor to be someone who can do anything he wants to her, who does not have to worry about answering any challenges that the victim (or her representatives) might put to him. The torturer confronts no moral or legal impediments stemming from his victim's will, but evidently takes himself to be limited only by his own desires and interests, or the desires and interests of those he serves as an agent. Yet the torturer is in a position to demand anything from his victim as if by an enforceable right. The most intimate and private parts of a victim's life and body become publicly available tools for the torturer to exploit as he will. The victim is completely exposed, while the torturer is free to conceal anything he likes, even those things to which a victim clearly has a right and a profound interest. Typically, victims are kept in the dark about where they are, why they are being tortured, who might be making the ultimate decisions about their fates, how long they have been confined, or even whether it is day or night. The asymmetry of power, knowledge, and prerogative is absolute: the victim is in a position of complete vulnerability and exposure, the torturer in one of perfect control and inscrutability. Characteristically, the torture victim finds herself to be not only physically and morally defenseless, but exposed to a will that appears largely if not completely arbitrary.12 The victim's greatest interests are completely subject to the caprice of her torturers, who normally conceal just what it is they want or what their ultimate plans are, or represent their goals in inconsistent and ever-shifting ways. Of course, a victim might know that she is being tortured for a specific purpose (to obtain some particular piece of information, perhaps, or to incriminate someone) or that her torturers operate under some significant restrictions (perhaps they have orders not to kill or leave any permanent marks on the victim). Yet even in these cases, the victim's only grounds for such beliefs about her tormentors’ ends and intentions come from how these tormentors choose to present themselves to her. Typically, a torture victim has no independent way of corroborating any admissions or assurances of her torturers. Insofar as she is able to form any estimate of their motives and intentions, the victim must trust in the sincerity of people who have already shown that they have no scruples about how they treat her. A torturer may seem to want a particular piece of information, or recognize certain kinds of treatment to be off-limits, but such self-imposed restrictions might be abandoned or revised without warning at any moment. The victim knows nothing of her torturer other than what he wants her to know, save that he is at best indifferent to her rights and interests. Even if the victim is willing to supply the information or confession that seems to be wanted, she has no reason to believe that her tormentor will accept it as accurate and complete. Perhaps she will continue to be tortured “just to make sure,” or for some other reason entirely, or for no reason at all. She can neither verify any claims her tormentor makes, nor rely on any promises or assurances he offers. Instead, the victim can only guess at the real motives and intentions of her torturer, being forced into the position of trusting someone in a context that makes the very idea of trust seem insane.13 Torture should be distinguished from both coercion and brainwashing, even though all three may often overlap in particular cases. What is distinctive about torture is that it aims to manipulate its victims through their own responses, as agents, to the felt experience of their affects and emotions in a context of dependence, vulnerability, and disorientation. Coercion, in contrast, need only exploit the agent's rational responses to the cognitive content of these feelings. The coercer tries to influence his victims through their own appreciation of their reasons for action. Coercion presupposes that its victim thinks that his coercers intend to act against his interests should he act or fail to act in a particular way, and that the reason they have adopted such conditional intentions is to give him a stronger reason to do something than he had before. Coercion requires only that its victim have the capacities needed for practical reasoning and intentional action, and that he be able to recognize the expression of these powers in those who are trying to pressure him. Affect and emotion are not required, even though agents will normally take themselves to have very strong interests in avoiding certain kinds of affective experiences. In principle, we could coerce a being that has no emotional life at all (e.g., a corporate agent such as a state or a university), so long as this being had determinate interests that it rationally pursued in part by anticipating the intentions and actions of other rational agents. But we could not in principle torture this sort of artificial person who lacks any distinct sort of emotional or affective life. Coercion, as a kind of hard bargaining by means of threats, involves too direct an appeal to its victim's rationality to count as torture. Brainwashing, in contrast, diverges from torture in failing to appeal to its victim's rational judgment at all. Like the use of drugs or sleep deprivation to put a victim into a hyper-suggestible state, brainwashing exploits the victim's affects and bodily responses so as to directly subvert or restructure his rational capacities and commitments. It is essential to this process that the victim cannot be fully aware of what is going on. The victim's beliefs, desires, and perceptions are supposed to be reshaped in a way that reflects the brainwasher's designs, while still appearing to the victim as being properly responsive to the world and his own authentic concerns. To recognize that one has been brainwashed is to begin to undo the process. In contrast, not only is it possible for someone to realize that she is being coerced, but such a realization is a constitutive feature of coercion as such. To be coerced, I need to do more than realize that someone else will do something I find undesirable should I fail to do what he wants. I must also realize that my coercer has adopted this intention in order to get me to do what he wants, and that I can expect him to anticipate and block my attempts to escape or modify this situation. To be coerced I must see myself as threatened in this way, as confronting another will that intends to consistently frustrate my actions for the sake of its interests. I experience the will of my coercer not just as distinct from my own, as an obstacle or impediment, but as my will's opponent, as a counter-will that is the systematic negation of my own in some area of activity. In contrast, successful brainwashing requires that its victim ultimately take up and identify with the will of another person, thereby losing any sense that this will is different from or opposed to her own. Torture exists somewhere between coercion and brainwashing. Like coercion, torture requires its victim to have some minimal understanding of what is being done to him. The victim must realize himself to be at the mercy of someone else who is deliberately trying to get him to act against his own choices and commitments. Yet the torturer is not merely constructing a harsh set of options for the victim to rationally navigate as best he can. The felt experience of pain, fear, and uncertainty are essential elements of torture. Yet the torturer does not set out to exploit the immediate causal consequences of these feelings, as if pain were just a particularly cheap or effective form of truth serum. Rather, in torture the victim must confront his own feelings as a problem, as something he must respond to, where this response is something for which he may see himself to be in some way accountable. Torture is normally accompanied not just by pain and the constant threat of pain and death, but also with by relentless (if evidently pointless) questioning. The victim is presented with a dilemma about submission or resistance (which can also be a dilemma about how or when to properly or effectively submit). And he must confront this dilemma not merely with respect to the disvalue of pain and fear, but while caught up in the experience of these very feelings themselves. There need not always be a determinate answer as to whether some piece of manipulation is really one of coercion, torture, or brainwashing. A particular act might simultaneously be an instance of more than one type of abuse. The torture victim subjected to repeated electrical shock is also being coerced. Even if he were completely dispassionate, he would realize that he was being given some very compelling reasons to submit to his tormentor. Torture will also sometimes approach brainwashing, insofar as the protracted experience of pain and terror seldom leaves an individual's rational capacities intact. The experience of torture may simply shatter a mind, making it immediately responsive to the suggestions of an interrogator, just as one may be brought to babble without inhibition or control by the influence of drugs. Any particular act of torture will tend to shade off in one direction or another: the more effectively the torture undermines the victim's rational capacities, the less effectively it can also be coercing him by appeal to his incentive structure (and vice versa). Yet while there can be such irreducibly overlapping cases, this does not entail that coercion, torture, and brainwashing all exhibit the same basic kind of wrong that varies only in terms of quantitative dimension.14 As the roles of reason and sensibility shift along this spectrum, the relation of the victim to her tormentor and to herself can assume new shapes that take on different kinds of moral significance. The question now emerges whether torture, so understood, represents a morally distinct and interesting category of action. This question has two aspects. The first is whether torture represents any sort of morally unified category at all, or whether it only refers to a heterogeneous collection of acts that bear various resemblances to one another. The worry here is that even if such acts are individually objectionable in some way or other, there may be no interesting type of wrong that they all involve.15 The second aspect of the question concerns whether torture, if indeed a morally unified category, is sufficiently basic to be of analytical interest. Is there a special type of moral wrong characteristic of torture as such, or can this wrong (or wrongs) be fully captured by a broader description that might just as readily apply to different kinds of action? If there is such a basic wrong, does appeal to it illuminate what is fundamentally objectionable about torture, or does this appeal turn out to be only a way of repeating our basic conviction that torture is especially or uniquely bad? The naive utilitarian objection to torture is that it produces tremendous suffering that typically fails to be sufficiently offset by any resulting benefits. A sufficiently nuanced utilitarianism may appeal not just to the intensity and quantity of pain that torture involves but also to the special disutilities associated with the “higher pains” only available to creatures that can experience dread, anguish, and self-disgust.16 This utilitarian can also point to the lasting psychological and political effects of torture on human beings and institutions. The agony of torture typically continues to reproduce itself in the lives of victims and those close to them long after the physical torments stop.17 Politically, torture tends to become an entrenched, ever-widening practice, progressively divorced from whatever legitimate aims it might have originally served. Torture that is resorted to as an emergency measure frequently becomes a permanent feature of a regime of terrorization for its actual and potential victims, an education in brutality for its perpetrators, and a corrosive that progressively dissolves the rule of law.18 The sophisticated utilitarian will also point to the typical inefficiencies and self-defeating effects of torture. Torture is a notoriously unreliable way of gathering intelligence (although perhaps not all that more unreliable than the alternatives usually available). Torture is usually a counterproductive strategy of political control, undermining respect for legal authority and in the long run leaving a subject population more alienated and radicalized than cowed. The utilitarian focuses on the actual harms involved in torture, and in so doing clearly captures an essential element of what is morally objectionable about such practices. However, utilitarianism will have trouble explaining the moral significance of the social and intentional structure of the “drama” that torture enacts. For it seems that all the harms that typically result from torture might just as readily result from what can sometimes be morally legitimate forms of warfare. It is doubtful that there is any form of pain or injury that can be delivered by a torturer that is categorically worse than the harms that can result from bullets and bombs. The torture victim may experience such terror and helplessness as to leave him permanently shattered psychologically, but so too may besieged soldiers subjected to artillery or aerial bombardments intended to destroy their morale.19 Yet such tactics are not normally met with the sort of categorical condemnation that the torture of enemy soldiers receives. If the special wrongness of torture reflected only the special badness of harms it inflicts, then a soldier who could rescue either a number of troops from a firefight or the same number of POWs from torture would be strictly obligated to do the latter, other concerns being equal. I take it that this conclusion does not correspond to how we intuitively understand the special moral status of torture. While we have strong moral reasons to prevent torture, they do not seem to be different in kind from the reasons we have to prevent the traumas of war. But we do seem to have a moral reason not to serve as someone's torturer that is qualitatively different, and more stringent, than the reasons we have not to make war on him. There seems to be something about the distinctive structure of the relationship of torturer to victim that is intrinsically objectionable and that goes beyond the badness of its usual effects. Kantian moral theory may seem better suited to capture the distinct moral considerations posed by the structure of the relationship between torturer and victim. The Kantian argues that what is essentially wrong with torture is the profound disrespect it shows the humanity or autonomy of its victim. Here, torture is wrong as the most extreme instance of using someone as a mere means to purposes she does not or could not reasonably share. Although this explanation clearly captures part of what is morally significant about torture, the account is importantly incomplete. The Kantian's problem complements that of the utilitarian. The utilitarian focuses on the badness of the victim's agony but cannot readily grasp the significance of the characteristic interpersonal structure of torture. The Kantian can begin to make sense of that structure, but in turn has difficulty explaining why torture seems morally special because it specifically involves pain and other unpleasant feelings, rather than some other way that our ends might be frustrated or our agency disrupted. For the orthodox Kantian, what is fundamentally objectionable about torture is that the victim, and the victim's agency, is put to use in ways to which she does not or could not reasonably consent. The fact that it is pain that is characteristically involved is of only indirect importance. What immediately matters to the Kantian is that the victim may reasonably and strongly object to such treatment. The use of pain is significant only insofar as pain is something someone may reasonably and strongly refuse to undergo. But just as the social setting of torture adds a special dimension to its wrongness, so too must the fact that torture involves pain and action directly upon the victim's body rather than some other intensely unwanted imposition. I may deeply desire that some compromising photographs that have been stolen from me never be made public, and I might even be willing to endure great physical pain in order to prevent this. Yet my blackmailer is not doing anything of a piece with torturing me, even though she is thwarting my will through a means to which she has no right. The orthodox Kantian can go a little farther toward accommodating the special significance of pain. Unlike other kinds of unwanted imposition, pain characteristically compromises or undermines the very capacities constitutive of autonomous agency itself. It is almost impossible to reflect, deliberate, or even think straight when one is in agony. When sufficiently intense, pain becomes a person's entire universe and his entire self, crowding out every other aspect of his mental life. Unlike other harms, pain takes its victim's agency apart “from the inside,” such that the agent may never be able to reconstitute himself fully. The Kantian can thus recognize that torture is not only a violation of the value of rational agency, but a violation that is accomplished through the very annihilation of such agency itself, if only temporarily or incompletely. This account faces the challenge of showing how disrupting rational self-governance through pain is interestingly different from disrupting self-governance through intense physical pleasure (or any other kind of affect that is not painful). Of course, intense pleasure is usually welcomed by its recipients, and as such may be fully consistent with their own autonomy. Moreover, it is normally quite difficult to “inflict” pleasure on someone against his will. Pain is certainly a simpler and more effective tool for such manipulation, particularly in the absence of sophisticated medical technology. Yet there seems to be no barrier in principle to undermining someone's agency through ecstasy rather than through suffering. Certain drugs might induce intense euphoria in someone regardless of what he wants and in a way that, like pain, makes it impossible to think or care about anything else. Perhaps such pleasure would make its victim liable to suggestion, such that he would reveal anything under questioning. If of a sufficiently ascetic or puritanical