The Ethical Perils of Knowledge Acquisition
2009; Taylor & Francis; Volume: 28; Issue: 2 Linguagem: Inglês
10.1080/07311290903181218
ISSN1937-5948
Autores Tópico(s)Deception detection and forensic psychology
ResumoClick to increase image sizeClick to decrease image size Notes [This paper is based on a keynote address prepared for “Towards Knowledge Led Policing and Security,” a conference held at Canterbury Christ Church University, UK, September, 2008. Support for this essay has come from National Science Foundation Research Grant #0619226.] 1 Here I will do no more than reference some of the substantive (and critical) discussions of human flourishing: Gilbert Harman, “Human Flourishing, Ethics, And Liberty,” Philosophy and Public Affairs 12 (1983): 307–322; David B. Wong, “On Flourishing and Finding One's Identity in Community,” Midwest Studies In Philosophy 13 (1988): 324–41; Mark C. Murphy, “Functioning and Flourishing,” Proceedings of the American Catholic Philosophical Association 73 (1999): 193–206; and the special issue on “Human Flourishing,” Social Philosophy and Policy 16, no. 1 (1999): 1–361. 2 I focus here on subnational group terrorism (whether or not supported by national groups). My comments do not necessarily bear on state terrorism. 3 I have developed these at greater length in Ethics in Criminal Justice: An Introduction (Cambridge, UK: Cambridge University Press, 2008), chap. 3. 4 Such a case might fall under what is commonly referred to as “noble cause corruption.” See John Kleinig, “Rethinking Noble Cause Corruption,” International Journal of Police Science and Management 4, no. 4 (2002): 287–314. 5 The notions of proportionality and disproportionality are more frequently evoked than explicated. Much of the discussion of proportionality has developed within the context of “just war” theory. See, for example, Thomas Hurka, “Proportionality in the Morality of War,” Philosophy and Public Affairs 33, no. 1 (2005): 34–66. In criminal justice, see, especially, Andrew von Hirsch and Andrew Ashworth, Proportionate Sentencing: Exploring the Principles (London: Oxford University Press, 2005). 6 An interesting recent case in England is R. (On the Application of Corner House Research and Campaign Against Arms Trade) v. Director of the Serious Fraud Office, [2008] UKHL 60, where the House of Lords ruled that the rule of law should be sacrificed to national security interests, http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd080730/corner-1.htm (accessed August 26, 2009). 7 See P. A. J. Waddington, “Two Wrongs Can Make a Right,” Police Review 103 (February, 1995); also Geoffrey Markham and Maurice Punch, “Animal Rights, Public Order and Police Accountability: The Brightlingsea Demonstrations,” International Journal of Police Science and Management 6, no. 2 (2004): 84–96. 8 The difference between (2) and (3) can be illustrated by means of the following hypothetical: I am being pursued by a gunman who wants to kill me. On the one hand, I would be justified in shooting him in self-defense (proportionality); on the other hand, I could slip through a doorway and could prevent him from following me (a less invasive means). I should pursue the latter option. 9 See, for example, Patrick M. Connorton, “Note: Tracking Terrorist Financing Through SWIFT: When U.S. Subpoenas And Foreign Privacy Law Collide,” Fordham Law Review 76 (2007): 283–322. 10 See Jane Mayer, The Dark Side: The Inside Story of How The War on Terror Turned into a War on American Ideals (New York: Doubleday, 2008); Intelligence Science Board, ed., Educing Information. Interrogation: Science and Art (Washington, D.C.: National Defense Intelligence College, 2006), http://www.fas.org/irp/dni/educing.pdf (accessed August 26, 2009). Consider also: (1) the fact that some misinformation coercively extracted from alleged terrorists was used as part of the justification for the Iraq war; and (2) that some of the materials used to train Guantánamo interrogators were originally developed to extract false confessions from detainees. I sometimes suspect that the use of such techniques—and their public condonation—is as much connected to the psycho-political goal of assuring a fearful public that “something is being done” as it is expressive of an expectation that useful intelligence will be gained. In addition, as I note later, their use may also evidence the bureaucratic desire to cover one's rear, coupled with a general dehumanization or at least condescension toward those who are so treated. 11 It might be argued that sometimes, even if we know (or have good reason to believe) that we will not be able to achieve what we are after, we are nonetheless justified in proceeding with our attempts. Where a small country is attacked by a larger one, and fighting back is unlikely to be successful, it may be that fighting back is still called for: rather than cave in (even to a hopeless situation), which would be degrading, it may be a matter of moral dignity to stand and fight a battle even if one knows one cannot win it. Or consider a case in which the search for a killer will consume vast resources with little likelihood of success: one might argue that out of respect for the victim and victim's family one should do whatever one can to try to find the killer, even if little is likely to be yielded by one's efforts to do so. 12 We might think the same about a prostitution sting that for evidentiary reasons permitted officers to have sexual relations with their targets before arresting them. See Gary Marx, “Under-the-Covers Undercover Investigations: Some Reflections on the State's Use of Sex and Deception in Law Enforcement,” Criminal Justice Ethics 11, no. 1 (1992): 13–24. 13 In this connection see the materials gathered at The Washington Post web site, “Spying at Home,” http://www.washingtonpost.com/wp-dyn/content/linkset/2006/02/03/LI2006020301869.html (accessed August 26, 2009). 14 This was one of the points at issue in the famous exchange of John Dewey with Leon Trotsky. See Trotsky, Their Morals and Ours, 5th ed. (New York: Pathfinder Press, 1973). 15 This was a problem in an Australian case, Ridgeway v. The Queen (1995) 184 C.L.R. 19. The legislature subsequently responded by making an exception of government agents in sting operations. 16 The metaphor of dirty hands comes from a play of that name by the French philosopher, Jean-Paul Sartre. In the criminal justice domain, it often goes under the name of the “Dirty Harry” problem, from the Clint Eastwood film of that name. See Carl Klockars, “The Dirty Harry Problem,” Annals of the American Academy of Political and Social Science 452 (1980): 33–47. 17 In a liberal democracy there is an additional dimension to these problems when those we have elected to office “dirty their hands” on our behalf. In judging them, we must also judge ourselves. No doubt this is one of the reasons why, when we think they have gotten their hands filthy, and not merely dirty, we do not feel only angry at the way they have violated what we stand for but also feel guilty and ashamed at what has been perpetrated on our behalf. 18 For a valuable discussion, see Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, 2nd ed. (Princeton, NJ: Princeton University Press, 1996), chap. 1. I have offered an expanded account of security in my essay, “Liberty and Security in an Age of Terrorism,” in Criminologists on Terrorism and Homeland Security, ed. Brian Forst, Jack Greene, and James Lynch (New York: Cambridge University Press, forthcoming). But see also Jeremy Waldron, “Safety and Security,” Nebraska Law Review, 85 (2006), 454–507. Although my discussion here is largely in terms of the instrumental value of security, it can also be argued that a sense of security has intrinsic value. 19 For eavesdropping, see William Blackstone, Commentaries on the Laws of England, [c. 1765] Vol. 4: Of Public Wrongs [169] (Boston: Beacon Press, 1962), 189; and, for the origins of “Peeping Tom,” see Daniel J. Solove, “A Taxonomy of Privacy,” University of Pennsylvania Law Review, 154 (2006): 491. 20 For two valuable comparative (but also competitive) articles, see James Q. Whitman, “The Two Western Cultures of Privacy: Dignity versus Liberty,” Yale Law Journal, 113 (2004) 1151–1221; and Francesca Bignami, “European versus American Liberty: A Comparative Privacy Analysis of Anti-Terrorism Data-Mining,” Boston College Law Review 48 (May 2007): 609–98. 21 See Chris Jay Hoofnagle, “Big Brother's Little Helpers: How ChoicePoint and Other Commercial Data Brokers Collect, Process, and Package Your Data for Law Enforcement,” North Carolina Journal of International Law and Commercial Regulation 29 (2004): 595–616; see also—for example—the ChoicePoint page on the Electronic Privacy Information Center (EPIC) web site, http://epic.org/privacy/choicepoint/ (accessed August 26, 2009). 22 See Kyllo v. U.S., 533 U.S. 27 (2001). It is interesting to compare this case with Illinois v. Caballes, 543 U.S. 405 (2005), in which police used a sniffer dog to check for drugs in the trunk of the defendant's car. It was argued that because the dog was trained to detect only that to which Caballes had no right, no violation of his Fourth Amendment rights was involved. It is also instructive to compare these cases with Florida v. Riley, 488 U.S. 445 (1989), in which marijuana plants growing in a greenhouse in Riley's backyard were spotted using a surveillance aircraft. Here it was argued inter alia that overflying aircraft had become commonplace, and that Riley had no reasonable expectation of privacy with respect to that location. 23 See Ruth Gavison, “Privacy and the Limits of Law,” Yale Law Journal 89 (1980): 442. 24 Helen Nissenbaum, “The Meaning of Anonymity in an Information Age,” http://www.nyu.edu/projects/nissenbaum/paper_anonimity.html (accessed August 26, 2009). 25 See, for example, Benjamin Goold, CCTV and Policing (Oxford: Oxford University Press, 2003). 26 Helen Nissenbaum, “Privacy as Conceptual Integrity,” Washington Law Review 79 (2004): 119–57. 27 In developing the idea of distinct venues of activity, Nissenbaum draws on Michael Walzer's Spheres of Justice: A Dejense of Pluralism and Equality (New York: Basic Books, 1984). 28 Secrecy is a topic in its own right, even though arguments for when it may or may not be justified will sometimes intersect with arguments concerned with privacy. See Sissela Bok, Secrets: On the Ethics of Concealment and Revelation (New York: Vintage, 1989); and Carl J. Friedrich, “Secrecy Versus Privacy: The Democratic Dilemma,” in Privacy, NOMOS XIII, ed. J. Roland Pennock and John W. Chapman (New York: Atherton Press, 1971), 105–20. 29 For a useful compilation of documentation, with regular updates, see the EPIC “EU-US Airline Passenger Data Disclosure” web page, http://epic.org/privacy/intl/passenger_data.html (accessed August 26, 2009). 30 See Charlie Savage, “U.S. and Europe Near Agreement on Private Data,” New York Times, June 28, 2008. 31 A process that has been fraught by problems of accuracy, correctability, lack of transparency and oversight, and questionable effectiveness. 32 In his celebrated Oration on the Dignity of Man (1486), the Italian Renaissance philosopher Giovanni Pico della Mirandola located human dignity in the human power of self-transformation, the capacity of humans to be whatever they wish. This was innovative in more than one way. It accorded powers to humans that many theologians considered to have been radically lost when Adam and Eve rebelled against their Maker. In addition, significantly, it universalized the idea of dignity. Mirandola, Oration on the Dignity of Man, trans. A. Robert Caponigri (Chicago: Gateway, 1956). See further, Richard C. Dales, “A Medieval View of Human Dignity,” Journal of the History of Ideas 38, no. 4 (1979): 557–72. 33 See Michael J. Meyer, “Kant's Concept of Dignity and Modern Political Thought,” History of European Ideas 8, no. 3 (1987): 319–32; also Jeremy Waldron, “Dignity and Rank,” Archives Européennes de Sociologie 48 (2007): 201–237. 34 http://www.un.org/en/documents/udhr/ (accessed August 26, 2009). 35 Available at http://www.hrweb.org/legal/cat.html (accessed August 26, 2009). 36 See further, Jeremy Waldron, “Cruel, Inhuman, and Degrading Treatment: The Words Themselves,” New York University School of Law, Public Law Research Paper No. 08-36 (November 2008), 36, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1278604 (accessed August 26, 2009). 37 See Erin Louise Palmer, “Reinterpreting Torture: Presidential Signing Statements and the Circumvention of U.S. and International Law,” available at http://www.wcl.american.edu/hrbrief/14/1palmer.pdf?rd=1 (accessed August 26, 2009). I have discussed the U.S. situation (during the Bush administration) in more detail in Have We Become Too Fixated on Torture? This essay, published by the Association for Services to Torture and Trauma Survivors (ASeTTS), was first composed as a lecture given on the occasion of the UN International Day for the Support of Victims of Torture, June 26, 2008. Available at: http://pubs.asetts.org.au/Documents/HaveWeBecomeTooFixatedonTorture.pdf (accessed August 26, 2009). 38 See Ali Soufan, “My Tortured Decision,” New York Times, April 22, 2009, http://www.nytimes.com/2009/04/23/opinion/23soufan.html?_r=1&scp=20&sq=Interrogation&st=cse (accessed August 26, 2009) 39 HCJ 5100/94, Public Committee Against Torture in Israel vs. Government of Israel et al., Tak-El 458 (3) 99, http://www.law.yale.edu/documents/pdf/Public_Committee_Against_Tortured.pdf (accessed August 26, 2009). 40 I have developed these arguments further in “Ticking Bombs and Torture Warrants,” Deakin Law Review 1, no. 2 (2005): 614–27; and in “Torture and Political Morality,” in Politics and Morality, ed. Igor Primoratz (Basingstoke, UK: Palgrave Macmillan, 2007), 209–27. Additional informationNotes on contributorsJohn KleinigJohn Kleinig, author of Ethics in Criminal Justice: An Introduction (2008), is Professor of Philosophy in the Department of Criminal Justice, John Jay College of Criminal Justice, City University of New York; and Professorial Fellow, Centre for Applied Philosophy and Public Ethics, Charles Sturt University
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